Gujarat High Court
Azadbhai Chaturbhai Ramoliya vs State Of Gujarat on 22 December, 2023
NEUTRAL CITATION
R/CR.MA/19429/2023 ORDER DATED: 22/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 19429 of 2023
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AZADBHAI CHATURBHAI RAMOLIYA
Versus
STATE OF GUJARAT
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Appearance:
MR. N.D.NANAVATY, SENIOR ADVOCATE with MR DIPEN DESAI(2481) for
the Applicant(s) No. 1
MR YATIN OZA, SENIOR ADVOCATE with MR DAIFRAZ
HAVEWALLA(3982) for the Respondent(s) No. 1
MR. TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 22/12/2023
ORAL ORDER
1. By way of the present application under Section 438 of the Code of
Criminal Procedure, 1973, the Applicant has prayed for enlarging the Applicant
on anticipatory bail in connection with the FIR being C.R. No.
11210015230110/2023 registered with D.C.B. Police Station, Surat City for
the offenses punishable under Sections 498A, 306 and 114 of the Indian Penal
Code.
2. Heard learned Senior Advocate Mr. N.D.Nanavaty appearing with
learned Advocate Dipen Desai for the Applicant, learned Senior Advocate Mr.
Yatin Oza appearing with learned Advocate Mr. Daifraz Havewalla for
Respondent No.2 - Original Complainant and learned APP Mr. Tirthraj Pandya
for the Respondent - State.
3. Rule. Learned APP Mr. Tirthraj Pandya waives service of notice of
Rule on behalf of the Respondent - State and learned Senior Advocate Mr.
Yatin Oza appears and waives service of notice of Rule on behalf of the
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Respondent No.2 - Original Complainant.
4. Learned Senior Advocate Mr. N.D.Nanavaty has submitted that
earlier an FIR was lodged with similar set of allegations by a third party against
the present Applicant as well as the first informant of the present FIR. In the
proceedings of the earlier FIR, Discharge Applications have been preferred by
the respective accused persons and they have been protected by the Coordinate
Bench of this Court. He submitted that the alleged incident has taken place in
the year 2016 for which the FIR came to be lodged in the year 2023. The delay
caused in lodging the FIR has not been satisfactorily explained in the FIR. He
submitted that the co accused who was similarly situated to the present
Applicant has been considered for grant of anticipatory bail by this Court and
therefore on the ground of parity the present Applicant is also entitled for grant
of anticipatory bail. He therefore submitted to allow the present Application
suitable conditions.
5. Learned Senior Advocate Mr. N.D.Nanavaty 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 the remand. It is
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. Learned Senior Advocate, therefore, submitted that
considering the above facts, the Applicant may be granted anticipatory bail.
6. Learned APP Mr. Tirthraj Pandya has opposed grant of
anticipatory bail inter alia contending that three bogus agreement to sell are
yet to be recovered. It has been revealed during the course of investigation
that the present Applicant was having the said three bogus agreement to sell
and for the said purpose custodial interrogation of the present Applicant is
necessary. He therefore submitted to dismiss the Application.
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7. Learned Senior Advocate Mr. Yatin Oza appearing with learned
Advocate Mr. Daifraz Havewalla for the first informant has also opposed the
present Application inter alia contending that in all 12 bank accounts were
opened by the present Applicant wherein the amount was received. He also
submitted that three agreement to sell which were allegedly forged are to be
recovered from the present Applicant and for the said purpose, custodial
interrogation of the present Applicant would be necessary. He also submitted
that the statement of the Notary clearly indicate the involvement of the Applicant
in the commission of the offence in question. He therefore submitted to dismiss
the present Application.
8. Heard learned Advocates for the parties and perused the record.
From the record, it appears that earlier with similar set of facts and allegations
an FIR was lodged by some third party against the present Applicant as well as
the present first informant. Thereafter, the present FIR has been lodged by the
present first informant who was the co accused in the earlier FIR.
8.1 It also appears from the record that the alleged incident had taken
place in the year 2016 whereas the FIR has been lodged in the year 2023 for
which no plausible explanation is coming forth. As per the case of the
prosecution, the other co accused namely Jyotsanaben Azadbhai Ramoliya,
who happens to be wife of the present Applicant, is the main conspirator along
with the present Applicant in commission of the offence in question and the
Coordinate Bench vide its order dated 7.10.2023 has ordered to enlarged the co
accused Jyotsanaben Azadbhai Ramoliya on anticipatory bail. The Coordinate
Bench in its order has observed as under:
"(i) It appears that a complaint being CR No. 31 of 2018 was lodged
earlier by one Kushal Nitin Gheewala on 19.05.2018 at Dumas Police
Station, Surat, for offenses punishable under Sections 406, 420, 465,
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471, and 120 (B) of the Indian Penal Code, wherein the complainant
has mentioned about the same piece of land, which was involved herein
and clearly stated that a sale deed was executed.
(ii) Considering the fact that in the present case, the complainant, who
is accused No.1 (Rasik Lallubhai) in I-C.R. No. 31 of 2018, had lodged
a complaint stating that in the years 2008, 2009, and 2011, forged sale
agreements were executed. However, in the earlier complaint, it is
stated that the sale transaction took place in the year 2016, it appears
that there are contradictions regarding the date of the offense, and in
present complaint, the sale deed executed already, and in connection of
sale of agreement of the years 2008-2009 and 2011, the complaint is
filed in the year 2023.
(iii) Considering the fact that various civil litigations cases are pending
before the Civil Court, prima facie, it appears that the dispute is of a
civil nature.
(iv) Reference of same parcel of land has been made in earlier offence
i.e. I-C.R. No.31 of 2018."
8.2 The aforesaid observations are also applicable to the facts of the
present case.
9. This Court has also 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.
Therefore, in the facts and circumstances of the present case, this
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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 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. Further, this Court has also taken into
consideration the ratio laid down in the case of Sushila Aggarwal and Ors. v.
State (NCT of Delhi) and Anr. in Special Leave Petition No. 7281-
7282/2017 dated 29.01.2020.
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 anticipatory bail in the event of his arrest in
connection with a FIR being C.R. No. 11210015230110/2023 registered with
D.C.B. Police Station, Surat City for the offenses punishable under Sections
498A, 306 and 114 of the Indian Penal Code, on executing a personal bond of
Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on
the condition that the Applicant;
(a) shall cooperate with the investigation and make available for
interrogation whenever required;
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(b) shall remain present at concerned Police Station on 2 6 . 1 2 . 2 0 2 3
between 12.00 Noon and 2.00 p.m.;
(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 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
NEUTRAL CITATION
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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.
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.
(M. R. MENGDEY,J)
J.N.W
