Manishbhai Mulchandbhai Patel vs State Of Gujarat
2023 Latest Caselaw 768 Guj

     R/CR.MA/17594/2022                                          ORDER DATED: 31/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 17594 of 2022

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                          MANISHBHAI MULCHANDBHAI PATEL
                                      Versus
                                STATE OF GUJARAT
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Appearance:
ABHISST K THAKER(7010) for the Applicant(s) No. 1,2
MR DHRUV K DAVE(6928) for the Respondent(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                     Date : 31/01/2023

                                        ORAL ORDER

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants accused have prayed to release them on anticipatory bail in case of their arrest in connection with the F.I.R.No.11196003220539 of 2022 registered with Manjalpur Police Station, District Vadodara City for the offenses punishable under Sections 406, 420, 465, 468, 471 and 120-B of the Indian Penal Code.

2. Learned advocate for the applicants submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the applicants are available during the course of investigation and will not flee from justice. In view of the above, the applicants may be granted anticipatory bail.

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Learned advocate for the applicants on instructions states that the applicants are 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 applicants accused to oppose such application on merits may be kept open.

3. 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.

4. Learned advocate for respondent complainant also opposed grant of anticipatory bail to the applicants looking to the nature and gravity of the offence alleged against them.

5. Having heard the learned advocate for the parties and perusing the investigating papers and as well as taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the applicants accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant anticipatory bail to applicant no.2 Mukesh Purshottambhai Patel. This Court has also taken into

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consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. as reported at [2011] 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors., as reported at (1980) 2 SCC 665.

6. In the result, the present application is allowed by directing that in the event of applicant no.2 Mukesh Purshottambhai Patel herein being arrested pursuant to F.I.R.No.11196003220539 of 2022 registered with Manjalpur Police Station, District Vadodara City, the said applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees ten thousand only) with one surety of like amount on the following conditions:

(a) he shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) he shall remain present at concerned Police Station on 07/02/2023 between 11.00 a.m. and 2.00 p.m.;

(c) he 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

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court or to any police officer;

(d) he 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) he 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) he shall not leave India without the permission of the Court and if having passport shall deposit the same before the 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 it on merits;

7. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. 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

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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 completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

8. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the said applicant no.2 on bail.

9. Qua applicant no.1 Manishbhai Mulchandbhai Patel, this Court is not inclined to grant anticipatory bail for the reasons that bare reading of the FIR clearly transpires role of applicant no.1 in the offene alleged as he being a power of attorney of other partners of the partnership firm being Shrusti Buildicon made a false document and sold the disputed land and construction is also made on it.

9.1. From the order rejecting anticipatory bail application of the applicants accused by the court below, the same ground is mentioned with regard to illegal sell of the plots to a partnership firm namely Srushti Buildicon and the said firm has made construction of flats on said land.

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10. In case of XXX v/s Arun Kumar C.K & Anr. Reported in 2022 Live Law (SC) 870 (Criminal Appeal No. 1834/2022) petition for Special Leave to Appeal (Crl.) No.7188/2022), Hon'ble Apex Court has held that:

"Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail.

We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the High Court granting anticipatory bail to the accused should be quashed and set aside. In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail.

There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the

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accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment."

11. In case of Prahlad Singh Bhati versus N.C.T. Delhi and another reported in 2001 AIR SCW 1263, the Hon'ble Apex Court has observed as under in para-8:

"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 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."

12. Therefore, considering the law which has been laid down by the Hon'ble Apex Court and considering the averments made in the complaint as well as considering the observations made by the learned court below

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concerned, this court is of the considered view that custodial interrogation can be one of the grounds to decline anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail and this is not the case where the discretion should be exercised in favour of the applicant accused for anticipatory bail.

13. For the foregoing reasons and from the facts and circumstances of the case, it appears that the prosecution has clearly established the prima facie case against the present applicant no.1 accused and the court below has rightly rejected application of the applicant no.1 accused seeking anticipatory bail. This Court, therefore, is not inclined to exercise the powers vested under Section 438 of Code of Criminal Procedure Code for releasing the present applicant no.1 accused on anticipatory bail.

14. 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, the same shall not come in the way of the trial court for considering the application that may be filed by the applicant no.1 for regular bail or at the time of trial and the trial court concerned shall not be influenced by the observations made hereinabove.

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15. In view of aforesaid, present application of the applicant no.1 Manishbhai Mulchandbhai Patel seeking anticipatory bail is rejected. Interim relief, if any, stands vacated.

16. Rule is answered to the aforesaid extent. Present application is disposed of accordingly. Direct service is permitted.

(SAMIR J. DAVE,J) ILA