Gujarat High Court
Tinabhai Lagdhirbhai Desai vs State Of Gujarat on 20 February, 2021
Bench: Ashokkumar C. Joshi
R/CR.MA/2750/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2750 of 2021
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TINABHAI LAGDHIRBHAI DESAI
Versus
STATE OF GUJARAT
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Appearance:
MR. K M JADEJA(7521) for the Applicant(s) No. 1
MR LAXMANSINH M ZALA(5787) for the Applicant(s) No. 1
MS. MAITHILI MEHTA, APP for the Respondent(s) No. 1
RC JANI AND ASSOCIATE(6436) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 20/02/2021
ORAL ORDER
1. By way of present successive anticipatory bail application
under Section 438 of the Code of Criminal Procedure, 1973, the
applicant-accused has prayed for anticipatory bail in connection
with the FIR being I - C.R. No. 5 3 4 o f 2 0 1 9 registered with the
Sola High Court, Police Station, District: Ahmedabad (City) for the
offences punishable under Sections 420, 465, 467, 468, 471, and
120(B) of the Indian Penal Code.
2. Learned advocate Mr. R.C. Jani has instructions to appear for
the original-complainant. Registry to accept Vakalatnama of learned
advocate Mr. R.C. Jani for the original-complainant.
2.1 Rule. Learned advocate Mr. R.C. Jani waives service of rule for
the original-complainant. Learned APP Ms. Maithili Mehta waives
service of rule for the respondent- State.
3. The facts in nutshell of the case are that the present FIR has
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been lodged by one Balchandbhai Dayabhai Patel - the complainant
and the owner of land in question. It is stated in the FIR that the
original-complainant had purchased the said land in the year 2005
and since then the said land is in his possession and he has been
cultivating the same land. On 15.11.2019, the complainant received
a phone call of his relative namely- Chirag Patel, informing that
some land broker came to sell your land situated at village- Ognej.
On 27.11.2019, his son- Nainesh received a phone call from his
friend - Mr. Anupbhai Patel that sale deed is registered of
complainant land situated at village Ognej, so inquire with the Office
of Sub-Registrar. On inquiry with the Office of the Sub-Registrar, it is
found that bogus agreement to sale was created by Sanjaybhai
Rabari. Hence, this FIR is lodged.
4. Learned advocate Mr. Laxmansinh Zala for the applicant-
accused has vehemently and fervently argued in the first limb of his
argument that in the present case, the co-accused is released on
anticipatory bail by the learned 7th Additional Sessions Judge,
Ahmedabad (Rural) therefore parity may be given to the present
applicant-accused. Further, he argued that the co-accused has been
enlarged on anticipatory bail by the learned Sessions Court,
Ahmedabad (Rural) vide order dated 23.09.2020 but the same was
before the withdrawl of the anticipatory bail application by the order
of this Court dated 18.12.2020. The learned Sessions Judge has
enlarged the co-accused and therefore he has not approached
before this Court, the present applicant-accused may be enlarged
on anticipartory bail by applying parity and exercise discretion in
favour of the applicant.
4.1 In the second limb of argument, he has drawn the attention of
this Court towards the undertaking filed by the applicant at Page 59
of this application, whereby the applicant-accused declared that he
will not proceed with the earlier documents were made and
therefore, also the discretion may be exercised in favour of the
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applicant-accused. Further, in the third limb of his argument,
learned advocate Mr. Zala has submitted that sale deed is already
executed and underking is already taken on record, moreover, the
earlier anticipatory bail application was withdrawn. He requested
that in this successive anticipatory bail application, discretion may
kindly be exercised and enlarge the applicant-accused on
anticipartory bail. There are few judgments of this Court, wherein
successive Anticipatory Bail is allowed, though, it is discretionary
order.
5. Per-contra, learned advocate Mr. R.C. Jani for the original-
complainant has heavily opposed this application and submitted
that pursuant to the contents of the FIR and other papers on record,
it appears that the role attributed to the co-accused is lesser in
compare to the role attributed to the present applicant-accused. He
further submitted that looking to the papers, it appears that there
were in all two transactions which were alleged to be bogus
transactions of Power of Attorney. Learned advocate Mr. R. C. Jani
further submitted that the present applicant is an absconder. In the
last limb of his arguments he submitted that the undertaking filed
by the present applicant-accused before this Court, wherein he has
undertaken to reverse all the transactions, if any, pursuant to the
document dated 20.11.2019, which prima-facie shows the indirect
admission of offence, which is a case of conviction in trial, therefore,
this Court may not exercse discretion in favour of the applicant-
accused.
6. Learned APP Ms. Maithili Mehta for the State has also joined
with the arguments of learned advocate Mr. R.C. Jani for the
original-complainant and added that in the present case, learned
advocate for the applicant has placed reliance upon the judgment of
the learned Sessions Court, whereby the learned Sessions Court has
enlarged the co-accused on anticipatory bail, which amounts to
review and the same is not permissible. She further submitted that
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the applicant can approach to the Hon'ble Apex Court by Special
Leave petition against the order of this Court. Moreover, in the
present case, in comparision to the role attributed to the present
applicant-accused and the co-accused who has been elarged by the
learned Sessions Court on anticipatory bail is different. The role
attributed to the present applicant-accused is much higher in
comparison to the role attributed to the co-accused who was
enlarged on Anticipatory Bail by the learned Sessions Court.
6.1 In the last learned APP for the State has drawn the attention
towards the undertaking given by the present applicant, which is at
Page 59 of the present application memo (Admission of offence) and
submitted that the parameters to enlarge on regular bail is different
in compare to the parameters of the anticipatory bail, therefore,
also when the applicant is absconder having greater role in compare
to the role attributed by the co-accused, upon such premises, this
Court may not exercise the discretion.
7. Having heard the arguments advanced by all the sides, as per
catena of decisions of Hon'ble Apex Court, there are mainly two
factors which are required to be considered by this Court, (i) prima-
facie case and (ii) requirement of accused for custodial
interrogation.
7.1 Considering the present FIR which has been lodged by one
Balchandbhai Dayabhai Patel - the complainant and the owner of
land in question. It is stated in the FIR the the original-complainant
had purchased the said land in the year 2005 and since then the
said land is his possession and he has been cultivating the same
land. On 15.11.2019, the complainant received a phone call of his
relative namely Chirag Patel informing that some broke came to sell
your land situated at village- Ognej. On 27.11.2019, my son-
Nainesh received a phone call from his friend - Mr. Anupbhai Patel
that sale deed is registered of your land at village Ognej, so inquire
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with the Office of Sub-Registrar. On inquiry with the Office of the
Sub-Registrar, it is found that bogus agreement to sale was created
by Sanjaybhai Rabari. Hence, this FIR is lodged.
8. This Court has taken into considetration that in the present
case, pursuant to the papers on record, it appears that the present
applicant-accused is having greater role in compare to the role
played by the co-accused, who has been enlarged on anticipatory
bail by the learned Sessions Court. Secondly, earlier the applicant
has withdrawn the anticipartory bail application and this is a
successive anticipartory bail application filed by the same applicant.
Further, the reliance has placed by the learned advocate for the
applicant upon the order passed by the learned Sessions Court by
which co-accused has been enalarged on anticipartory bail and
requested for parity but this Court is of the considered opinion that
the role attributed to the present applicant-accused is higher than
the role attributed to the co-accused, who has been elarged on
anticipartory bail by the learend Sessions Court. Moreover, the
applicant-accused has filed an undetaking which is at Page 59 of the
application, wherein it is metioned that no further transactions
would take place, therefore, in fact, it is indirect admission of an
offence. The successive anticipartory bail application might be
allowed by the Co-ordinate Bench but in the present case, pursuant
to the facts and circumstances of the case, this Court is of the
opinion that this is not a fit case to exercise the discretion for
enlarging the applicant-accused on anticipartory bail.
Simultaneously, when the applicant-accused is absconding, upon
such premises, as per the catena of decisions, when the offence is
under Sections 420, 465, 467, 468, 471, and 120(B) of the Indian
Penal Code, wherein punishment is upto life specially under Section
467 of the IPC, therefore, also pursuant to the role attributed to the
present applicant-accused and perusing the papers on record and
allegations upon the present applicant, this Court is not inclined to
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exercise discretion vested under Section 438 of the Criminal
Procedure Code, in successive anticipartory bail application of the
present applicant.
9. This application is devoid of merits. This application fails and
accordingly dismissed. Rule is discharged.
(A. C. JOSHI,J)
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