Gujarat High Court
Kishor Shantilal Patel vs State Of Gujarat on 8 December, 2023
NEUTRAL CITATION
R/CR.MA/8885/2023 ORDER DATED: 08/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8885 of 2023
(FOR REGULAR BAIL - AFTER CHARGESHEET)
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KISHOR SHANTILAL PATEL
Versus
STATE OF GUJARAT
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Appearance:
MS NAYANA V PANCHAL(531) for the Applicant(s) No. 1
MR DHRUV K DAVE(6928) for the Respondent(s) No. 1
MR MANAN MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 08/12/2023
ORAL ORDER
1. The present application is filed under Section 439
of the Code of Criminal Procedure, 1973, for
regular bail in connection with the FIR being C.R.
No.11210015220178/2022 registered with the DCB
Police Station, Mehsana for the offence punishable
under Sections 420, 465, 467, 468, 471 and 34 of
the Indian Penal Code.
2. Heard learned advocate, Mr. Aftabhusan Ansari with
learned advocate, Ms. Punita Joshi for the
applicant, learned APP Mr. Manan Mehta for the
respondent - State of Gujarat and learned
advocate, Mr. Dhruva Dave for the original first
informant.
3. Learned advocate for the applicant submitted that
the so-called incident has taken place from
08.04.2023 and the FIR has been registered on
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10.11.2022 and in connection with the same, the
applicant has been arrested on 11.11.2022 and
since then, he is in judicial custody. Learned
advocate submitted that now the investigation is
completed and after submission of the chargesheet,
the present application is preferred. Learned
advocate submitted that almost more than year has
been passed and the applicant is in jail since
then and the case is based upon documentary
evidence and all the documents have been collected
by the Investigating Officer during the course of
investigation and all the offences are exclusively
triable by the Court of Magistrate and trial will
take its own time to conclude and, hence, the
applicant may be granted bail. Learned advocate
submitted that some dispute related to land has
been cropped up between the brothers, which
resulted into registration of the FIR and because
of which, the applicant has been arrested. Learned
advocate submitted that it was never the intention
of the applicant to cheat his brother and in fact,
steps have been taken by the applicant for
cancellation of the power of attorney executed in
his favour. Learned advocate submitted that there
is inordinate and unexplained delay caused in
filing the aforesaid FIR and in fact, civil
dispute has been converted into criminal one.
Learned advocate further submitted that as stated
above, the applicant in jail since last more than
year and if the applicant is not released on bail
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then, there will be pre-trial punishment. Learned
advocate submitted that from the papers of the
chargesheet, no material worth the name connecting
the applicant - accused with the commission of
crime is found out. Learned advocate submitted
that the co-accused has already been granted bail
and, hence on the ground of parity, the present
application may be considered. Learned advocate
also submitted that there is no past antecedent
against the applicant. Learned advocate,
therefore, urged that considering the facts of the
case, the present applicant may be enlarged on
bail by imposing suitable conditions.
4. On the other hand, learned APP for the respondent-
State has opposed grant of regular bail looking to
the nature and gravity of the offence. It is
submitted that the role of the present applicant
is clearly spelt out from the papers of the
chargesheet. Learned APP submitted that during the
course of investigation, the Investigating Officer
has collected sufficient material and evidence as
also recorded the statements of witnesses, which
connect the applicant with the alleged commission
of offence and, hence, discretion may not be
exercised in favour of the applicant. Learned APP
submitted that in the present case, the dispute
related to the land is between two brothers and
the applicant being brother of the complainant has
cheated him by executing forged and fabricated
registered power of attorney in his favour and
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based on it, sale deed has been executed behind
his back and pocketed entire sale consideration
and, hence, the conduct of the applicant is also
required to be taken into consideration while
deciding the present application. Learned APP has
submitted that concerned IO has also filed an
affidavit opposing the bail application filed by
the applicant before the concerned Sessions Court,
wherein the role played by the applicant - accused
is clearly mentioned. Learned APP submitted that
it is true that the co-accused have already been
enlarged on bail but the role attributed to the
present applicant is grave than the role
attributed to those accused, who have been granted
bail and, hence, aspect of parity cannot be
considered. Thus considering the above facts of
the case, the present bail application may not be
entering.
5. Learned advocate, Mr. Dhruv Dave appearing for the
original complainant has also opposed the grant of
bail application. Learned advocate has referred to
the contents of the affidavit filed by the
original first informant and submitted that in
fact, the applicant admitted and concealed that a
false and forged power of attorney of the
applicant and his family member was created and,
thereafter, soda-chithii was drawn, where the
applicant has played vital role in the commission
of crime and in the FIR, specific role is
attributed to him, which is supported by the
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investigation papers. Learned advocate submitted
that the transaction was for an amount of
Rs.4,74,00,000/- and for the execution of the sale
deed, the applicant - accused has forged and
fabricated the power of attorney, wherein he has
himself made signature of the original first
informant and the witnesses and the said fact has
come on record during the course of investigation.
Learned advocate, therefore, urged that
considering the nature of offence and the role
played by the applicant in the commission of
crime, the present application may not be
entertained.
6. I have heard the learned advocates appearing on
behalf of the respective parties and perused the
papers of the investigation and considered the
allegations levelled against the applicant and the
role played by the applicant. I have also
considered the reasoning given by the concerned
court while rejecting the bail application and the
affidavit filed by the IO opposing the said
application.
7. It is the settled position of the law that, at
this juncture detailed discussion of evidence and
canvassing of the allegations contained in FIR as
well as affidavit of the concerned Investigating
Officer or the merits of the case as well, is not
necessary and should be avoided.
8. It is found out from the record that serious
allegations have been leveled against the
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applicant - accused with regard to the forgery
committed by him based on the forged power of
attorney created by him behind the back of the
complainant and thereby tried to dupe the
complainant and pocketed entire sale consideration
received from the buyer, who are also arraigned as
accused. I have also considered the investigation
papers including the statements of the witnesses,
which connect the applicant with the commission of
crime. Further, the contention has been made by
learned advocate for the applicant with regard to
the release of the co-accused and, hence, the
application may be considered on the ground of
parity. It is, however, required to be noted that
in the present offence, the applicant is the
master mind, who has forged the power of attorney
and based on it, sale deed has been executed in
favour of other accused and, hence the role of
other co-accused are limited one, whereas the
applicant has played active role in the alleged
commission of crime and, hence, aspect of parity
would not apply in case of the applicant.
9. I have also considered the affidavit filed by the
IO before the concerned court in the application
filed by the applicant for regular bail, wherein
the role played by the applicant - accused is
clearly mentioned. It is found out that the sale
consideration was of Rs.4,74,00,000/-, which the
applicant wanted to pocket entire sale
consideration. Further to achieve such ill-
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intention, the applicant - accused has forged the
power of attorney, wherein he has himself signed
on behalf of the complainant as well as witnesses
and after forging such power of attorney, the land
has been sold to other accused by executing sale
deed and thereby pocketed entire sale
consideration. Thus considering the nature of
offence, role played by the accused and
involvement of the applicant - accused in the
commission of crime, the present application
deserves to be rejected.
10. At this stage, I would like to put reliance upon
the decision of the Hon'ble Apex Court in the case
of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI
Through its Director, reported in (2007) 1 SCC 70,
wherein, the Apex Court has laid down that, while
considering an application for regular bail, the
Courts shall have to take into consideration, the
following aspects,
(a) The nature of accusation and the severity
of punishment in case of conviction and the
nature of supporting evidence;
(b) Reasonable apprehension of tampering with
the witness or apprehension of threat to
the complainant;
(c) Prima facie satisfaction of the court in
support of the charge;
11. The Hon'ble Apex Court, further, observed at
Paragraphs-10 and 16 thus;
"10. In our opinion none of the aforesaid
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decisions can be said to have laid down any
absolute and unconditional rule about when
bail should be granted by the Court and
when it should not. It all depends on the
facts and circumstances of each case and it
cannot be said there is any absolute rule
that because a long period of imprisonment
has expired bail must necessarily be
granted.
16. We are of the opinion that while it is true
that Article 21 is of great importance
because it enshrines the fundamental right
to individual liberty, but at the same time
a balance has to be struck between the
right to individual liberty and the
interest of society. No right can be
absolute, and reasonable restrictions can
be placed on them. While it is true that
one of the considerations in deciding
whether to grant bail to an accused or not
is whether he has been in jail for a long
time, the Court has also to take into
consideration other facts and
circumstances, such as the interest of the
society."
12. The Hon'ble Apex Court has in a decision in case
of Prasanta Kumar Sarkar Vs. Ashis Chatterjee &
Anr., reported in (2010) 14 SCC 496 has made
observation as under,
"9. It is well settled that, among other
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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."
13. The Hon'ble Apex Court has in a decision in case
of Mahipal vs. Rajesh Kumar @ Polia & Anr.,
reported in (2020) 2 SCC 118, it has been held
that:-
"12. The determination of whether a case is fit
for the grant of bail involves the
balancing of numerous factors, among which
the nature of the offence, the severity of
the punishment and a prima facie view of
the involvement of the accused are
important. No straitjacket formula exists
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for courts to assess an application for the
grant or rejection of bail. At the stage of
assessing whether a case is fit for the
grant of bail, the court is not required to
enter into a detailed analysis of the
evidence on record to establish beyond
reasonable doubt the commission of the
crime by the accused."
14. From the aforesaid discussion, it appears that as
per the prosecution case, the applicant is
involved in the offence of forgery based on forged
power of attorney and taking into consideration
the complicity of the applicant, there being
apprehension of the witnesses being influenced,
severity of punishment as drawn from the nature
and gravity of the accusations, after taking due
consideration of the submissions of the parties,
and the settled case law in various judgments
passed by the Hon'ble Apex Court and various
Hon'ble High Courts, without expressing any
opinion on the merits of the case, I am of the
opinion that it is not a fit case for bail.
15. Accordingly, the present application is rejected.
Rule is discharged.
16. Needless to say that observations made herein
above are confined to decision of the present bail
application.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
