Dhirubhai Manajibhai Hirapara vs State Of Gujarat

                                                                                            NEUTRAL CITATION




     R/CR.MA/10395/2023                                        ORDER DATED: 15/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 10395 of 2023
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                          DHIRUBHAI MANAJIBHAI HIRAPARA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
MR. ZALAK B PIPALIA(6161) for the Respondent(s) No. 1
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                 Date : 15/09/2023

                                   ORAL ORDER

1. 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.11210015230058 of 2023 registered with DCB Police Station, Surat city, for the offences punishable under Sections 406, 409, 420 and 120 B of the Indian Penal Code, 1860.

2. Learned counsel for the applicant submits that the applicant has nothing to do with the offence and there is not an iota of evidence of cheating or criminal breach of trust qua the applicant. The allegations are made purely on documentary evidence and even if they are accepted in toto, then also, the dispute of civil nature and the alleged amount is paid as per the say of the complainant. He further submitted that, in the year 2020, the applicant and his son approached the first informant and agreed to purchase 31 flats and they have paid consideration towards the said flats by way of Page 1 of 6 Downloaded on : Mon Sep 18 20:40:45 IST 2023 NEUTRAL CITATION R/CR.MA/10395/2023 ORDER DATED: 15/09/2023 undefined cheque. As per the subsequent transactions, the accused in connivance with each other, duped Rs.32 crores of the complainant. Hence, going through the documents, it appears that no offence is made out against the applicant and he has been falsely roped in the offence. He further submitted that from 2020 to July, 2021, sale deeds have been executed and merely based on bald allegations, present FIR is filed. The applicant has approached this Court prior to issuance of any notice and till date, he is not aware about any warrant. The applicant has approached this Court in June, 2023. Moreover, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail.

Further, 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.

3. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail by contending that the applicant is habitual offender and similar offence is also registered against him. The applicant by cheating and criminal breach of trust, sold the shops and flats of the complainant and duped money of approximately Rs.32 crore. She further submitted that warrant under Section 70 has been issued and this Court has not entertained the application. Hence, custodial interrogation of the applicant is Page 2 of 6 Downloaded on : Mon Sep 18 20:40:45 IST 2023 NEUTRAL CITATION R/CR.MA/10395/2023 ORDER DATED: 15/09/2023 undefined required and therefore, no case is made out for anticipatory bail. Therefore, she prays that present application may not be considered.

4. Mr. Zalak Pipaliya, learned counsel for the complainant has adopted the arguments canvassed by learned APP and stated that warrant under Section 70 is issued and therefore, no case is made out to entertain this application. Relying on the judgment of Hon'ble Supreme Court delivered in case of State of Haryana Vs. Dharampal, reported in 2016 Law Suit SC 870, Mr. Pipaliya submitted that the applicant is involved in similar type of activities and duped money of several people by winning their trust. In this background facts, custodial interrogation of the applicant is required in the said offence and therefore, he prayed that no case is made out for the bail and to dismiss the present application.

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;

NEUTRAL CITATION R/CR.MA/10395/2023 ORDER DATED: 15/09/2023 undefined 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) Prima facie, it appears that the dispute is of civil nature and it has given a cloak of criminality;

(2) Perusing the contents of the FIR, prima facie it transpires that there is no any facts of entrustment of the property.

(3) There is no material from which it can be said that the applicant was having any intention of cheating from its inception;

(4) Whatever the dispute between the parties is of civil nature and for that, the complainant and other may take appropriate recourse or remedy available under law. So far question of performance of contract/ obligation or reciprocal promises is concerned is also available;

(5) Nothing is required to be recovered or discovered from the applicant;

(6) So far the issuance of warrant is concerned, there is no explicit bar for entertaining the bail application considering the nature of allegations levelled against the accused and the present applicant and the applicant is not declared as proclaimed offender;

(7) Co-accused have been enlarged on bail and therefore, on the ground of parity also, case is required to be considered Page 4 of 6 Downloaded on : Mon Sep 18 20:40:45 IST 2023 NEUTRAL CITATION R/CR.MA/10395/2023 ORDER DATED: 15/09/2023 undefined while granting anticipatory bail.

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.11210015230058 of 2023 registered with DCB Police Station, Surat city, 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 24.09.2023 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;

NEUTRAL CITATION R/CR.MA/10395/2023 ORDER DATED: 15/09/2023 undefined

(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 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. Rule is made absolute to the aforesaid extent. Application is disposed of accordingly. Direct service is permitted.

(HASMUKH D. SUTHAR,J) SUCHIT Page 6 of 6 Downloaded on : Mon Sep 18 20:40:45 IST 2023