Gujarat High Court
Patel Atulbhai Davjibhai @ ... vs State Of Gujarat on 16 January, 2023
Bench: Samir J. Dave
R/CR.MA/19659/2021 ORDER DATED: 16/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 19659 of 2021
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PATEL ATULBHAI DAVJIBHAI @ DWARKADAS RAMDAS
Versus
STATE OF GUJARAT
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Appearance:
MR PS PATEL(643) for the Applicant(s) No. 1
MS. ALKA B VANIYA(6945) for the Original Complainant.
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 16/01/2023
ORAL ORDER
Today, learned advocate for the applicant has produced
the affidavit of Pathak Sushilkumar Krupashankar who has
made his signature in the disputed will, which is taken on
record.
1. By way of the present application under Section 438 of
the Code of Criminal Procedure, 1973, the applicant - original
accused has prayed to release him on anticipatory bail in case
of his arrest in connection with the FIR being PART-A CR No.
11216009210507 of 2021 registered with Mansa Police
Station, District Gandhinagar for the offence punishable under
Sections 406, 420, 464, 467, 468, 471 and 120(B) of the
Indian Penal Code.
R/CR.MA/19659/2021 ORDER DATED: 16/01/2023
2. Heard learned advocates for the respective parties.
3. It was submitted by learned advocate for the applicant
that applicant is not having any single past criminal
antecedent. That the applicant is falsely implicated in the
offence. The applicant was looking after and taking care of
Patel Manguben Gandabhai in her old age and she did not
have any children. That the applicant is nephew of Patel
Manguben Gandabhai and therefore, she made a will in favour
of the applicant. That the entire episode as stated in the FIR is a
concocted version. That the complainant was jealous because
of the will made by Manguben Gandabhai Patel in favour of
the applicant in the year 2012 and she being advocate
pressurized the police officer, Mansa to lodge the complaint
and therefore, ultimately at the instance of complainant, the
complaint is filed. That, the complainant is very well aware
about notarized will made in the year 2012 and therefore, she
filed a suit in the year 2012 for declaration before the civil
court, Mansa and the suit is also pending for hearing. The FIR
is lodged almost after delay of 9 years from the date of
notarized will with ulterior motive and it is a clear case of
totally civil dispute.
4. Learned advocate for the applicant submits that the
nature of allegations are such for which custodial
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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 kept open.
Ultimately, it was requested by learned advocate for the
applicant to allow present application.
5. Learned Additional Public Prosecutor appearing on behalf
of the respondent no.1-State and learned advocate for the
original complainant have 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, if the
applicant is released on bail there are chances that the
applicant may tamper with evidence and even he may try to
dissuade the complainant or prosecution witnesses by threat or
promise. Ultimately, it was submitted by learned APP for the
respondent no.1 -State and learned advocate for the original
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complainant to reject present application.
6. I have considered the allegations leveled against the
present applicant in the FIR and perused the papers of
investigation and considered the role played by the applicant.
7. It appears from the observations made by learned
Sessions Judge in the order of rejecting the anticipatory bail
application of the applicant that present applicant is the main
accused and main beneficiary of the will, who is alleged to
have prepared the false will in connivance with the co-accused
and therefore, need for custodial interrogation is also required
to be considered at this stage and it is further observed that the
investigation is yet not completed and the witnesses of the will
are yet to be examined.
8. As per the prosecution case, the applicant, in connivance
with the co-accused, had made a forged will and had made
false signature of deceased Manguben, in the will. The
applicant has falsely shown himself as heir of deceased
Manguben in Mamlatdar Office and thereby, he prepared a
false will.
9. Thus, considering the role attributed by the applicant in
the present offence and gravity of offence, it appears that while
deciding the application for anticipatory bail court should have
to consider the gravity of offence and prima facie case of the
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applicant. Of course, provisions of Section 438 of the Code of
Criminal Procedure is very clear that where any person has
reason to believe that he may be arrested on accusation of
having committed a non-bailable offence, he may apply either
to the Court of Session or the High Court for a direction under
this section and at the time of considering the prayer of the
applicant about anticipatory bail, court should have to
consider (i) The nature and gravity of the accusation; (ii) the
antecedents of the applicant including the fact as to whether
he has previously undergone imprisonment on conviction by a
Court in respect of any cognizable offence; (iii) the possibility
of the applicant to flee from justice, repeat the offence and
tamper the witnesses; and (iv) where the accusation has been
made with the object of injuring or humiliating the applicant
by having him so arrested.
10. Therefore, considering the provisions of Section 438
of the CRPC 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.
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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 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, granted earlier stands vacated.
(SAMIR J. DAVE,J)
K. S. DARJI
