Gujarat High Court
Talikunjma @ Lalabhai ... vs State Of Gujarat on 16 November, 2021
Bench: Ashokkumar C. Joshi
R/CR.MA/19634/2021 ORDER DATED: 16/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 19634 of 2021
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TALIKUNJMA @ LALABHAI MOHAMMADANVAR SAIYED
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the applicant(s) No. 1
MS. MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 16/11/2021
ORAL ORDER
1. Heard learned advocate Mr. Pratik Barot for the applicant and
learned advocate Ms. S.P. Joshi for the original-complainant and
learned APP Ms. Monali Bhatt for the Respondent - State.
1.1 Rule. Learned APP Ms. Bhatt waives service of rule.
2. By way of the present 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 C.R.
No. 11191048211943 of 2021 registered with Sarkhej
Police Station, District: Ahmedabad (City) for the offences
punishable under Sections 406, 420 and 114 of the Indian Penal
Code.
3. The brief facts of the case are that the first informant
inter-alia alleging that while she and her husband were in search of
a house in the month of November 2020, they were interested in
the Scheme namely "Samandar - 2" in Fatewadi, Sarkhej Area. That,
the applicant was partner in the said scheme and at that time,
scheme was already in process and assurance was given to
handover the possession on 26.01.2021 and therefore, the
R/CR.MA/19634/2021 ORDER DATED: 16/11/2021
complainant paid Rs.3 Lacs. That, on different dates and at different
intervals, total Rs.10 lacs was paid by the complainant. That, since
the said scheme was floated on the Government land, therefore the
notices were issued to the builders and construction was
demolished, upon knowing this thing the complainant approached
the builders for the repayment of the amount, however on
09.09.2021 depositing the cheque of Rs.5 lacs, the same got
dishonoured with an endorsement of insufficient funds, therefore,
the FIR in question came to be lodged.
4. Learned advocate for the applicant has submitted that the
applicant is apprehending his arrest in connection the aforesaid FIR
and in this connection the earlier application filed by the applicant
before the learned Sessions Court came to be dis-allowed. Learned
advocate for the applicant has submitted that just to give criminal
colour, a false and frivolous complaint is created to pressurize the
present applicant, and therefore, the present application may kindly
be allowed.
5. Learned advocate for the applicant has further argued
that the applicant will keep himself available during the course of
investigation and trial also and will not flee from justice. He also
placed reliance upon the judgment delivered by the Hon'ble
Supreme Court in case of Arnesh Kumar v. State of Bihar reported in
(2014) 8 SCC 273 since the offence is under Section 406 of the IPC.
6. 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 further submitted 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.
R/CR.MA/19634/2021 ORDER DATED: 16/11/2021
Learned advocate, therefore, submitted that considering the above
facts, the applicant may be granted anticipatory bail.
7. Learned APP Ms. Bhatt appearing on behalf of the
respondent - State has opposed grant of anticipatory bail and
submitted that the applicant is the owner of the scheme and
committed cheating of Rs.10 lacs and also submitted that looking
to the nature and gravity of the offence discretion may not be
exercised in favour of the applicant. Learned advocate Ms. S.P. Joshi
for the original - complainant submitted that in the present case,
the applicant has constructed the scheme on the Government land,
therefore, the discretion may not be exercised in favour of the
applicant.
8. Having heard the arguments advanced by the learned
advocates for the parties and perusing the material placed on
record and taking into consideration the facts of the case, nature of
allegations, gravity of offences, role attributed to the accused,
without discussing the evidence in detail, at this stage, I am
inclined to grant anticipatory bail to the applicant.
9. This Court has considered following aspects,
(a) as per catena of decisions of Hon'ble Supreme Court
there are mainly two factors which are required to be
considered by this court;
(i) prima facie case
(ii) requirement of accused for custodial interrogation.
(b) The offence is under Sections 406, 420 of the IPC and
even if this Court consider the application, right of remand is open for the
Investigating agency.
Therefore, in the facts and circumstances of the present
case, this court is inclined to consider the case of the applicant.
R/CR.MA/19634/2021 ORDER DATED: 16/11/2021
10. This Court has also taken into consideration the law laid
down by the Hon'ble Apex Court in the case of Sushila
Aggarwal & Ors. Vs. State (NCT of Delhi)- Anr. reported
in 2020 SCC Online SC 98 and in the case of Siddharam
Satlingappa Mhetre Vs. State of Maharashtra and Ors.,
reported at [2011] 1 SCC 694, wherein the Hon'ble Apex Court
reiterated the law laid down by the Constitution Bench in the case
of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab,
reported at (1980) 2 SCC 565.
10.1 his court has also considered the judgment in the case of
Arnesh Kumar v. State of Bihar reported in (2014) 8 SCC 273,
wherein the Hon'ble Apex Court has observe that whenever there is
punishment of 7 years, then the court would be liberal to exercise
the discretion. Further, by exercising the discretion under Section
438 Cr.P.C, the doors of remand by the Investigating Officer is open
and therefore also this court is inclined to exercise powers under
Section 438 of Cr.P.C.
11. In the result, the present application is allowed. The
applicant is ordered to be released on bail in the event of his arrest
in connection with the aforesaid FIR on executing a personal bond
of Rs.25,000/- with one surety of like amount on the following
conditions:
(a) shall cooperate with the investigation and make
available for interrogation whenever required;
(b) shall remain present at concerned Police Station on
1 5 . 1 2 . 2 0 2 1 between 11.00 a.m. and 2.00 p.m.;
(c) shall not directly or indirectly make any inducement, threat
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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 concerned
trial court and if having passport shall deposit the same before the
concerned 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 the remand application without
being influenced of the observations made by this Court;
12. 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. This is, however, without prejudice
to the right of the accused to seek stay against an order of remand,
if, ultimately, granted, and the power of the learned Magistrate to
consider such a request in accordance with law. 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
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immediately, subject to other conditions of this anticipatory bail
order.
13. At the trial, the concerned trial court shall not be
influenced by the prima facie observations made by this Court in the
present order.
14. Rule is made absolute. Direct service is permitted.
(A. C. JOSHI,J)
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