ORAL ORDER
1. RULE. Learned APP waives service of notice of Rule on behalf of the respondent-State.
2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11210063230581 of 2023 registered with Siganpore Dabholi Police Station, Dist. Surat, for the offences punishable under Sections 420, 465, 467, 468, 471 and 120 B of Indian Penal Code, 1860.
3. Learned advocate for the applicant submits that the applicant has nothing to do with the alleged offence and has falsely been implicated in the offence. There is delay of more than 11 years in registering the FIR. The applicant is not the beneficiary of the alleged offence and neither the applicant has taken any personal monetary gain by alluring the complainant or any other persons. The maternal grandfather of the complainant had executed irrevocable power of
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attorney and the same was not revoked, neither any objection was taken by the complainant or other legal heirs of the power of attorney. He further submitted that, along with the maternal grandfather of the complainant, Khodabhai Patel and Vasantben Patel had also executed such power of attorney for the land in question and both of them or their legal heirs had also not taken any objection against the same. The applicant had not forged the signature in 135D Notice and neither produced any false statement. He also submitted that in total 8 persons have given power of attorney to the applicant only after expiry of grandfather of the complainant and no one has raised dispute qua legality and genuinity of the power of attorney. Dispute is of civil nature and it has given a cloak of criminality. The applicant is senior citizen, aged 75 years old. In view of the above, the applicant may be granted anticipatory bail.
Learned advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. He would further submit that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open.
4. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail contending that the informant has filed a complaint as false power of attorney being used by the applicant as maternal grandfather of the complainant has expired in the year 2003 and his signature has been put in 135 D notice. Nonetheless,
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by hatching conspiracy, entire scam is done in the guise of two firms namely Dobariya Developers and Avinashi Corporation. Entire land is transferred and divided in two blocks. One Laxmiben who is co-accused and in her account, by forging her signature, amount is transferred and the same is withdrawn by Ghanshyambhai. Thus all the accused are in collusion with each other hatched conspiracy and committed crime. Hence, custodial interrogation is required. Considering the same, present application may not be considered.
5. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects.
(1) The applicant is aged 75 years old;
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(2) Power of attorney is irrevocable and civil proceedings have been initiated;
(3) Power of attorney is executed in favour of the applicant by 8 persons;
(4) During lifetime, neither Karamsibhai Nathabhai Patel, nor remaining 7 persons, who have executed irrevocable power of attorney in favour of the applicant, raised dispute or objection.
(5) Civil dispute is going on;
(6) So far interpolation in Survey Nos.235/1/2/3 is concerned, measurement of land being 1623 Sq.Mtrs. is mentioned in the power of attorney and same measurement is also mentioned in the revenue record.
(7) Case is based on documentary evidence and therefore, custodial interrogation of the applicant is not necessary.
6. Considering the aforesaid aspects and the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors.
reported in (2011) 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of
Sushila Aggarwal v. State (NCT of Delhi) reported in
(2020) 5 SCC 1, I am inclined to allow the present application.
7. In the result, the present application is allowed by directing that in the event of applicant herein being arrested in connection with the FIR being C.R. No.11210063230581 of
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2023 registered with Siganpore Dabholi Police Station, Dist. Surat, the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he:
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on
16.10.2023 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the applicant;
(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the Court and if having passport shall deposit the same before the Trial Court within a week; and
(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;
8. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to
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treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
9. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail.
10. Rule is made absolute to the aforesaid extent. Application is disposed of accordingly. Direct service is permitted.
(HASMUKH D. SUTHAR,J)
SUCHIT
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