Balvantsinh Shivubhai Raol vs State Of Gujarat
2023 Latest Caselaw 938 Guj

     R/CR.MA/10576/2021                             ORDER DATED: 07/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 10576 of 2021

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                          BALVANTSINH SHIVUBHAI RAOL
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR JAL SOLI UNWALA, SR ADV. WITH MR HARSH M SURTI(3907) for the
Applicant(s) No. 1
MR KISHAN R CHAKWAWALA(9846) for the Original Complainant.
MR HK PATEL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                Date : 07/02/2023

                                 ORAL ORDER

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR being C.R.No.I-11191011210028 of 2021 registered with DCB Police Station, District Ahmedabad for the offence punishable under Sections 406, 420, 465, 468, 471 of the Indian Penal Code.

2. Learned advocate for the applicant submits that applicant had not proved any false signature of Khodaji Shivaji Thakore and has not fabricated any document, much less irrevocable power of attorney and agreement to sale as alleged. That in the whole complaint, the complainant does not say

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anywhere that at which particular point of time and date, she has come to know that the applicant has fabricated the document as alleged. That there is a delay of 14 years in filing of the complaint. That, complainant had already filed FIR Being CR No. 100 of 2019 before the Satellite Police Station and thus, complainant cannot file two complaints for the same offences. That the filing of the FIR is nothing but the misuse of process of law which cannot be accepted by any person having prudent sense. That the complainant is making the police authorities as tool to satisfy and settle his oblique motive.

3. It was further submitted by learned advocate for the applicant that the applicant is innocent and has not committed any offence but has been falsely implicated in the alleged offence only with an oblique motive and malafide intention. That, nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. That, 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 would further submit that upon filing of such application by the Investigating Agency, the right of applicant-accused to oppose such application on merits may be

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kept open. Ultimately, it was requested by learned advocate for the applicant to allow present application.

4. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. That, the applicant is involved in the serious offence as alleged and therefore, no leniency view would be taken in favour of the applicant while releasing him on anticipatory bail. That, custodial interrogation of the applicant is required for reaching to the root of the offence. That the investigation of the present offence has been going on. Ultimately, it was submitted by learned APP for the respondent-State to reject present application.

5. Learned advocate for the original complainant has strongly objected the submissions made by learned advocate for the applicant and submitted that in the affidavit filed by the original complainant, complainant has clarified about the delay caused in lodging complaint. That valuable security in nature of Kabulatnama which is forged and is created and misused by the applicant for the valuable ancestral property of the original complainant with ulterior motive and means reas so as to grab property and extort money. That, under the guise of false, fabricated and backdated valuable documents, the applicant has

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tried to trespass the property and grab the ancestral property. There is a clear, well designed, pre planning, criminal conspiracy means rea and ill motive on the side of the applicant. Ultimately, it was submitted by learned advocate for the applicant to reject present application.

6. Having heard learned advocates for the respective parties, it appears that while rejecting the bail application filed by the applicant, learned Sessions court has observed that all those connected have to remember that right to property is one of the most valuable rights. The more secure it is, the greater will be law and order security of ownership of land will lead people to invest in real estates and there will be more growth of economy. If idle properties will be entangled by one or other way, it will work to the detriment of investments and open doors of crime.

7. It appears from the observation made by learned Sessions Court that the applicant is involved in the serious offence and played vital role in commission of offence.

8. This court is conscious about aspects to be considered while deciding the bail application ie. gravity of offence and rule played by the applicant and thus, while considering the averments made in the present application, it appears that the valuable security in nature of Kabulatnama which is forged and is created and misused by the applicant for the valuable ancestral

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property and that shows that the applicant is involved in the serious offence and applicant has played a vital role in the present offence. It appears that the investigation of this offence is going on and presence of the applicant is much required to reach to the root of the offence.

9. In case of Prahlad SIngh Bhati versus N.C.T. Delhi and another reported in 2001 AIR SCW 1263, has observed as under in para 8 of the report :

"8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purpose of granting the bail, the Legislature has used the words 'reasonable grounds for believing" instead of "the

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evidence" which means the court dealing with grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

10. Therefore, considering the law which has been laid down by the apex court and considering the averments made in the complaint filed by the original complainant and after considering the observations made by the learned sessions judge concerned, as per my view, this is not the case where the discretion should be exercised in favour of the applicant for anticipatory bail. Therefore, this application is required to be rejected.

11. Before parting with this judgment, it is hereby clarified that the aforesaid observations made in this order have been made for the purpose of considering the present application for anticipatory bail. Therefore, same shall not come in the way of the trial court for considering the application that may be filed by the applicant for regular bail or at the time of trial and the

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trial court concerned shall not be influenced by the observations made hereinabove.

12. In the result, this application is rejected. Rule Stands discharged. Interim relief, if any, stands vacated.

(SAMIR J. DAVE,J) FURTHER ORDER:

13. After passing order of rejecting this application, learned advocate for the applicant has requested to extend the Interim relief granted earlier but while considering the facts and circumstances of this case, request made by learned advocate for the applicant is not accepted.

(SAMIR J. DAVE,J) K. S. DARJI