Rafiqbhai Musabhai Sheikh vs State Of Gujarat
2021 Latest Caselaw 17363 Guj

      R/CR.MA/16890/2021                             ORDER DATED: 17/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC. APPLICATION NO. 16890 of 2021

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                           RAFIQBHAI MUSABHAI SHEIKH
                                     Versus
                               STATE OF GUJARAT
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Appearance:
Learned Advocate Mr. UJJAVAL SARIN with learned Advocate Mr. HARDIK
H DAVE(6295) for the Applicant(s) No. 1
MS. MOXA THAKKAR, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                Date : 17/11/2021

                                 ORAL ORDER

1. Heard learned advocate Mr. Ujjaval Sarin with learned advocate Mr. Hardik Dave for the applicant and learned APP Ms. Moxa Thakkar for the Respondent - State.

1.1 Rule. Learned APP Ms. Moxa Thakkar waives service of notice of Rule for 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 for anticipatory bail in connection with the FIR being C.R. No. 11207055210466 of 2021 registered with Rajgadh Police Station, District: Panchamahal for the offences punishable under Sections 420, 465, 471 and 120(B) of the Indian Penal Code.

3. The brief facts of the case are that the present FIR is lodged as per the order of Secretary, District Land Vigilance Committee, Panchmahals by the complainant in his official capacity who is working as a Circle Officer at Ghoghamba. That, Village Jada

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Na Muvada, Taluka - Ghoghmba being old Survey No. 51 and new Survey No. 109 is in the name of Government and the applicant along with other accused persons were aware about that and with an illegal intention to sell the said Government land, had created forged sale deed and the sold the land in question between 19.03.2015 to 30.1.2018 to the various persons vide different sale deeds and therefore, the present FIR in question came to be registered.

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. He further drawn the attention of this Court to the Page No. 29/B whereby, the Gram Panchayat had passed a resolution that the applicant has been in possession of the captioned land from last 20 years. He further submitted that FIR is registered after a period of 4 years and places reliancd upon the taxed paid by the applicant to the Gram Panchayat. He also submitted that there is no antecedent against 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.

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

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accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail.

7. Per Contra, learned APP Ms. Moxa Thakkar appearing on behalf of the respondent - State has opposed grant of anticipatory bail and submitted that this is a case of encroachment upon the Government land. She further submitted that even if we perused the resolution of Gram Panchayat then also the applicant is simply in possession of the said land but ownership is not stated therein and the applicant has sold the Government land for consideration and looking to the nature and gravity of the offence discretion may not be exercised infavour 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)     FIR is registered after delay of 4 years. (C) There is no

antecedent upon the applicant (D) Offence is registered under Sections 420, 465, 471 of the IPC, where the maximum punishment is up to 7 years.

Therefore, in the facts and circumstances of the present

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case, this court is inclined to consider the case of the applicant.

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 This 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.;

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(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 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

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completion of such period of police remand, shall be set free 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) prk