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2024 DIGILAW 758 (GUJ)

Mukesh Vanraj Jain v. State of Gujarat

2024-04-04

J.C.DOSHI

body2024
JUDGMENT : 1. By way of the present petitions under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11199061240016 of 2024 registered with Ankleshwar City ‘B’ Division Police Station, Bharuch. 2. The brief facts leading to filing of the present application are as under. 2.1 It is case of petitioner that an FIR is lodged by one Mr.Ajaykumar Daljitbhai Sambaliya on 09.01.2024 for the incident which is alleged to have occurred on 07.02.2023. It is alleged therein that the land barring revenue survey no. 304, old survey no.346/2 and present survey no.453, admeasuring 6071 sq. mtrs. situated in the sim of village Jitali and survey no.346- 1, old survey no.346/1 and new survey no.454 admeasuring 02 Hectare 02 AREs - 13 sq. mtrs. is also situated in the sim of village Jitali. It is alleged that said property belongs to old Masjid Jitali Trust. It is alleged that Mr. Yusuf Gulam Mahamad Pandor; Mr. Ismail Yusuf Pandor and Mr. Iqbal Ahmed Patel had registered the rent agreement in favour of Mr. Mukeshbhai Vanrajbhai Jain. It is alleged that vide letter dated 30.11.2023, the Gujarat State Waqf Board informed the Inspector General of Registration, Stamp and Registration Bhavan at Gandhinagar, that no such permission letter was given, permitting aforesaid premise for giving aforesaid premise on rent. It is also alleged that in the outward register of Waqf Board, there is no mention of any such letter dated 20.02.2016, neither there is any application, seeking permission for giving premise of the Trust on rent. It is alleged that forged letter has been utilized as genuine one and, therefore, the aforesaid complaint was lodged by the first informant. Hence, the present application. 3. Heard learned advocate Mr.B.M.Mangukiya appearing for the petitioner, learned advocate Mr.Manish Shah appearing for the first informant and learned APP appearing for the respondent State. 4. Learned advocate Mr.B.M.Mangukiya submitted that the present petitioner is neither the author of the document said to have been forged document or executor of the said document. He would further submit that the present petitioner is the victim. 4. Learned advocate Mr.B.M.Mangukiya submitted that the present petitioner is neither the author of the document said to have been forged document or executor of the said document. He would further submit that the present petitioner is the victim. He would further submit that the role of the petitioner is limited to the extent that without inquiring about the genuineness of the order of the Wakf Board, he entered into the Lease Agreement for the Wakf property. He would further submit that the petitioner is though stated to have alleged forgery he has played no active role in commission of the offence. The trustees of the masjid have executed the Lease Agreement in favour of the present petitioner. The Lease Agreement has been registered with the Sub-Registrar’s office and subsequent thereto, it came to the notice that the order of Wakf Board permitting for lease of the masjid property is forged one. The present petitioner has not played any role in commission of offence. The petitioner is not even a abater in the commission of the offence. Vague allegations are made against the accused. He would further submit that trustees of the Juni Masjid Jitali Trust have been granted anticipatory bail by the concerned Sessions Court. The principle of parity attracts in this case. He would further submit that the petitioner is a reputed person and if he is going to be arrested in the offence where no role is attributed to him, it will tarnish his image and would cast social stigma upon him. He would submit that the petitioner has no antecedents. The petitioner is ready and willing to extend cooperation in the investigation. The petitioner is permanent resident of Ankleshwar, District Bharuch and having route in form of movable and immovable properties. Therefore, there is no flight risk. Therefore, it is submitted that the petitioner may be enlarged on anticipatory bail with the conditions. 5. Strongly objecting to grant of anticipatory bail, learned advocate Mr.Manish Shah appearing for the first informant submitted that the present petitioner is the kingpin in main culprit. The present petitioner is a person at whose instance the forged order from the Wakf Board has been brought to the light and upon which the lease of the property of the old Masjid Jitali Trust has been executed for 29 years. The present petitioner is a person at whose instance the forged order from the Wakf Board has been brought to the light and upon which the lease of the property of the old Masjid Jitali Trust has been executed for 29 years. The property of the old Masjid Jitali Trust worth crores of rupees has been leased to the present petitioner at meager price. 5.1 He would further submit that in fact the petitioner forged documents of the Gujarat Wakf Board dated 20.02.2016 and used the same after many years which prima facie indicates that the petitioner is the main kingpin in commission of the offence. He would further submit that in fact the trustees of the Masjid Trust were also misguided by the forged order which was issued in the name of the petitioner and as such the trustees of the Masjid Trust have executed the Lease Deed in favour of the petitioner. Forging a document in the name of the petitioner itself indicates that the petitioner is the main person in grabbing the land of the Juni Masjid Jitali Trust. The petitioner has not only forged order of the Wakf Board but also used round seal of the Wakf Board as well as forged signatures of the officer of the Wakf Board and as such prima facie offence is made out against the accused. He would further submit that before the Lokayukt, the complaint was filed alleging that there are multiple transactions where the orders of the Wakf Board are forged and pursuant to which either sale deed of the Wakf property are executed or lease deed of the Wakf properties are executed. He would submit that in view of such aspect, the petitioner who is the main culprit may not be granted anticipatory bail. Therefore, he would submit that there is a forged order of Wakf Board and it is being used as genuine. Thus, prima facie case is made out and therefore, learned Senior Counsel would submit to dismiss the petition. 6. Learned APP having adopted the arguments canvassed by the learned advocate Mr.Manish Shah would submit that in view of the Wakf rules if the Wakf property is to be leased for more than three years, prior approval of the Government is necessary. In the present case, no prior approval of the Government is obtained for leasing the Wakf property for more than three years. In the present case, no prior approval of the Government is obtained for leasing the Wakf property for more than three years. The petitioner has forged the orders of the Gujarat State Wakf Board permitting to sell or lease Wakf properties and used the same as genuine one. As far as order permitting sale of the Wakf property is concerned, Gujarat State Wakf Board has never granted such permission but only granted permission to conduct auction of the Wakf property and as far as forged order of Gujarat Wakf Board is concerned, no procedure ever took place and directly back date order was forged to facilitate interested persons. 6.1 He would submit that the Lokayukt has been complained about the illegality of leasing or selling the Wakf property in the Nadiad, Mandvi, Ankleshwar, Athwa, Nanpura, Palasana, Olpad and Bardoli where total 36 complaints were made. The verification has been undertaken and it was found that in six such matters, forged order of the Gujarat Wakf Board has been prepared and upon such forged orders, the sale deeds or lease deeds are executed. The motive and object of making such forged document is to grab the Wakf property. The present petitioner is the main person in his offence. Multiple forged and fabricated orders of the Wakf Board have been delivered by the other accused namely Afsana Kazi and Iqbal Deraiya. Upon above submissions, he would submit to dismiss the bail application. 7. Having heard learned advocates for both the sides and going through the record, what appears that Writ Petition (PIL) No.214 of 2016 was filed by Save Wakf Properties Movement Gujarat vs. State of Gujarat and others, wherein the Division Bench of this Court has passed following order on 13.10.2016 : “Issue NOTICE to the respondents returnable on 24th November, 2016. Till then, there shall be interim relief in terms of para-12(E) of the petition. Direct service permitted.” 8. Therefore, it is incumbent that the order of interim relief would pass in terms of 12(E) prohibits sale and transfer of the Wakf properties in the State of Gujarat. 9. Now, if we go through the papers on record, the fact remains that the Wakf property belongs to Juni Masjid Jitali Trust has been leased to the present petitioner for 29 years upon an order which is said to be a forged is of the year 2016. 9. Now, if we go through the papers on record, the fact remains that the Wakf property belongs to Juni Masjid Jitali Trust has been leased to the present petitioner for 29 years upon an order which is said to be a forged is of the year 2016. The number of such Wakf Board order is G.S.W.Board/Section-51/Outward No.3980/2015. The Lease Deed is executed in the year 2023. The order is issued in the name of the present petitioner which prima facie shows some suspicion that if the order issued by the Wakf Board is of the year 2016 why the lease deed of the Wakf property is executed in the year 2023. There is no explanation on the part of the petitioner in this regard. It is undeniable that the petitioner is not the trustee of the Juni Masjid Jitali Trust, the Wakf property of which has been leased to the petitioner. The order of the Wakf Board which is said to be forged is issued in the name of the petitioner. Meaning thereby, the petitioner is mainly involved in getting such forged order. Ordinarily and as per the rule, the trustees of the Wakf property would apply for seeking permission to execute the lease deed and as such order would also be issued in the name of the particular trust or Wakf. But, in the present case, Mr.Mukesh Jain, the present petitioner who is alien to the Juni Masjid Jitali Trust got the order in his favour. This is somewhat unusual and not as per the provisions of the law and prima facie it demonstrates that the order is forged one. The petitioner is failed to point out that the order of the Wakf is genuine one. If we refer the register having outward No.1666/2016 dated 20.02.2016, such outward letter was issued in the name of some person residing at Panchmahal having Wakf No.005 of Panchmahals and it was a Ferfar Report No.486 of 2015. But here the outward number is copied from there and the forged document is created. Moreover, it is also appearing that no outward No.1666 is noted on 20.02.2016 and outward No.1666 is registered on 22.02.2016. So prima facie it appears that the present petitioner is the kingpin in commission of the offence. But here the outward number is copied from there and the forged document is created. Moreover, it is also appearing that no outward No.1666 is noted on 20.02.2016 and outward No.1666 is registered on 22.02.2016. So prima facie it appears that the present petitioner is the kingpin in commission of the offence. He has forged the order of the Wakf Board to use forged seal as well as signature of the concerned Officer and presented them as genuine before the Sub-Registrar office to get executed the lease of the Wakf property for 29 years. What further appears is that as per the rule if the lease of the Wakf property is to be executed for more than three years, prior approval of the Government is necessary and needed. No such prior approval is obtained and it was obvious because the order permitting execution of the lease is forged one. 10. At this juncture, I may refer to affidavit of objection filed by Mr.M.H.Kumar, CEO of Gujarat Wakf Board as under : “2. It is submitted that the Inspector General of Registration wrote one letter to the Wakf Board dated 30/09/2023 requesting to inquire whether in the said thirty-six matters permissions were granted by the Board or not? Annexed hereto and marked as Annexure RI is a copy of letter dated 30/09/2023 of the Deputy Inspector General of Registration, Gandhinagar. 3. It is submitted that pursuant to the above letter the Wakf Board had verified six properties wherein false sale/lease permission had been produced before the Sub-Registrar and therefore as on today six FIRs are lodged. It is submitted that still the process of verification is ongoing and due to election of the Wakf Board quick verification process could not be done out of thirty-six properties. It is submitted that the Wakf Board has informed vide letter dated 03/11/2023 to the Inspector General of Registration informing about the production of false permission letters for registering lease deeds which is annexed hereto and marked as Annexure R2. 4. It is submitted that that is how the Wakf Board came to know about false lease permission created in the present matter. 4. It is submitted that that is how the Wakf Board came to know about false lease permission created in the present matter. It is submitted that there is never an application was made before the Wakf Board for seeking permission to lease the property in question, not only that Wakf Act, 1995 and Lease Rules, 2020 requires that if the property is to be leased for more than 3 years then the permission of the State Govt is necessary which is not done in the present case as there was never an application made to the Board seeking permission to lease the property. 5. It is submitted that the document produced along with the lease deed as lease permission dated 20.02.2016 contains outward No. 1666 of 2016 which not tally hereto with the outward register of the Board. Annexed hereto and marked as Annexure R3 is a copy of the register showing page where serial no.1666 is mentioned. 6. It is submitted that the allegation against the applicant in the present matter have cropped up during the investigation. The Board believes-that there is a major role played by the applicant as the forged letter granting lease permission is issued in the name of present applicant which has been used by the present applicant for registering the lease deed whereas, there was never an application made by the applicant seeking such permission of lease before the Board and therefore, the applicant was knowing very well that such letter is a forged letter although, he utilized the same to his benefit and therefore, the applicant is not innocent and had played vital role. It has also revealed during the investigation that the original letter is with the present applicant which has not been yet provided to the police as well as it has also revealed during the investigation that one another false letter for different land belonging to Wakf Board granting sale permission dated 10.06.2015 was handed over to the present applicant in his office by other two co-accused and thus, the present applicant has involvement in more than one cases and has played vital role in creating false sale/lease permission in the name of Wakf Board along with other accused and therefore, the application of the applicant is required to be rejected and he should not be granted anticipatory bail.” 11. What appears after referring the objection that at the earlier point of time, Wakf properties were sold out despite there were objections. In the meantime, there was amendment in Wakf Act and more particularly in 51 and 104A prohibiting transfer of the property in any form and therefore after aforesaid process, no order can be passed by the Board permitting sale of property or even by its Chairman. The Division Bench in PIL after considering various aspects passed the interim order on 13.10.2016 so it closed the doors for selling/leasing the Wakf properties. Now if we go through the record what prima facie appears that the order of Gujarat State Wakf Board which are alleged to have been forged are of the year 2016, but they are not executed till recent past. Only in the year 2023 sale deed and lease deed have been executed. There is no explanation from the petitioner that if these orders are genuine why they are kept in dark and they could not see the light despite passing of seven years. It prima facie indicates that orders are forged to by-pass the amendment in the Wakf Act as well as interim orders passed by the Division Bench of this Court in PIL. The register of Gujarat State Wakf Board produced on record and being register from Government office indicates that the outward numbers of the impugned forged orders are in fact given to some other documents. They are in fact not matching with register of Gujarat Wakf Board. Since the register of Guajrat Wakf Board comes from office of Wakf Board prima facie it can be presumed to be genuine. To save action from the operation of Wakf Act and such orders and even the interim orders of the PIL, the order impugned alleged to have been forged of back date in the year 2016 to get the desired result of selling and leasing Wakf property. These transactions are void ab initio in view of amendment in Wakf Act came into force on 01.11.2013. The investigation papers prima facie demonstrate active involvement of the present petitioners in commission of offence. Not only they have forged the orders of the Gujarat State Wakf Board but also received it from concerned persons and these orders are used as genuine before the authority for execution of the sale deed or lease deed. The investigation papers prima facie demonstrate active involvement of the present petitioners in commission of offence. Not only they have forged the orders of the Gujarat State Wakf Board but also received it from concerned persons and these orders are used as genuine before the authority for execution of the sale deed or lease deed. The petitioner got executed lease deed of Wakf property in his name which indicates that he is beneficiary of the transaction. 12. Keeping in mind the law laid down by the Hon’ble Supreme Court in the case of (i) State Rep. by the CBI V/s Anil Sharma reported in 1997 (7) SCC 187 , (ii) Adri Dharan Das V/s State of W.B. reported in 2005 (4) SCC 303 (iii) P. Chidambaram V/s Directorate of Enforcement reported in AIR 2019 SC 4198 , wherein the Hon’ble Supreme Court has held held as follows: "The legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. It may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In this view, it cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant/applicant under Article 21 of the Constitution of India. Consequently, power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Anticipatory bail is to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy". Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation". 13. The principle of parity would not be attracted as the other accused who have been enlarged on anticipatory bail have played lesser role in commission of the offence. 14. In view of the above, the present petition seeking for anticipatory bail is dismissed.