Gujarat High Court
Dodiya Navalsinh Babubhai vs State Of Gujarat on 13 February, 2024
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R/CR.MA/23421/2023 CAV ORDER DATED: 13/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 23421
of 2023
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DODIYA NAVALSINH BABUBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
KUMAR H TRIVEDI(9364) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/02/2024
CAV ORDER
By way of the present petition under Section 438 of the
Code of Criminal Procedure, 1973, the petitioner has prayed to
release him on anticipatory bail in case of his arrest in
connection with the FIR registered as C.R.No.11192050230671
of 2023 registered with Sanand Police Station.
2. The short facts of the case as emerging from the FIR are
that The petitioner states that a FIR is lodged by the
complainant Mr.Gopalsinh Agarsing Dodiya on 02.11.2023 for
the incident which is alleged to have occurred on 17.08.2023. It
is alleged by the first informant that the land bearing revenue
survey no. 11 admeasuring 00 Hectare - 84 ARES 75 Sq.mtrs. is
situated in the village Rampura, which is an ancestral land of
the first informant. It is alleged by the first informant that in the
village form no.7/12 the names of the first informant, his
brother Mr.Anupsinh and his father Mr. Agarsinh were shown as
the owners. It is alleged that the first informant had sold said
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piece of land to his relatives, namely Mr.Aniruddhsinh Kanubhai
Dodiya; Mr. Vishnu Ramtuji Vaghela and Mr.Jaisil Rasikbhai
Patel by way of registered sale deed bearing no.16847 of 2023,
on 06.07.2023 for a consideration of Rs.70 lakhs, and the
possession was also handed over to them. It is alleged that
pursuant to the said transaction, the revenue entry bearing no.
1632 of 2023 was also posted in the revenue records. It is
alleged that Mr.Navalsinh Babubhai had raised a dispute against
mutation of the said revenue entry and the objection was given
before the Deputy Collector, Sanand, which was registered as
Disputed Case No.452 of 2023. It is alleged that the Deputy
Collector, Sanand, vide order dated 18.09.2023 rejected the
application submitted by the petitioner, raising dispute against
mutation of the said revenue entry bearing no.1632 of 2023. It is
alleged that the petitioner has also instituted Special Civil Suit
No.88 of 2023 in the competent court. It is alleged that in the
said civil suit, the petitioner has produced the Banakhat which
is executed before the Notary Mr. S.C. Thakkar and is registered
at sr.no. V/105/2002 on 27.09.2002. It is alleged that in the
said Banakhat, the first informant, his father and his brother are
shown as the executors of the said Banakhat and the same is
shown to have been executed in favour of the petitioner. It is
alleged that in the said Banakhat, it is also reflected that the
cheque of Rs.1,87,500/- drawn on Dena Bank, Sanand Branch,
bearing No.5341659 is shown. It is alleged that the first
informant has never received any such amount and it is also
alleged that in the said Banakhat, Mr.Ghanshyamsinh D Dodiya
and Dimple B.Shah are shown to have been witness of the said
Banakhat and the Banakhat also bears the signatures of the
first informant, his father and brother. It is alleged by the first
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informant that he nor his father and brother have placed any
signature in the register of the Notary or in the said Banakhat. It
is alleged that Mr.Navalsinh Babubhai Dodia, Notary
Mr.S.V.Thakkar, Mr.Ghanshyamsinh D. Dodiya and Dimple
Shah, with a view to grab the land of the first informant, have
with ulterior motive created false Banakhat and it has been used
in the civil suit instituted by the petitioner and have thereby
created litigation. It is alleged that the original copy of the
Banakhat was also not produced before the District Collector in
the application No.152 of 2023, thereby it has been further
alleged that the evidence has been destroyed. Hence, the present
FIR came to be filed.
3. Upon filing of the aforesaid complaint, the applicant
preferred an application seeking anticipatory bail before the
learned court below which came to be rejected and thus present
application is filed.
4. Heard learned Advocates appearing for the respective party
at length.
5. Learned Advocate Mr.Mangukiya for the petitioner would
submit that petitioner is not directly or indirectly involved in the
offence. He would submit that alleged banakhat was executed in
the year 2002 and consideration was also paid by way of cheque
in the year 2002; however the bank is merged with some other
bank and therefore records are not available. He would further
submit that since 2002 uptil now the first informant or father of
the first informant never questioned the signature of agreement
to sell and never alleged that there was forged and fabricated
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signature made in the agreement to sell. He would further
submit that in fact accused is not involved in any offence and
FIR is filed with oblique motive not to execute sale-deed in favour
of the petitioner for specific performance of agreement to sell, as
well as to get back the possession of the disputed land. He
would further submit that petitioner has filed the suit seeking
specific performance of the execution of the sale-deed before the
learned competent civil court against the first informant and
other persons; but unfortunately the said suit was rejected
under O.7 R.11 of the CPC inter-alia on the technical ground;
but that will not wash out the existence of agreement to sell and
genuineness of the said agreement.
5.1 Learned Advocate Mr.Mangukiya would further submit that
the alleged offence against the petitioner is triable by the
Magistrate Court where maximum punishment which can be
entailed is of three years inview of Section 29 of the CrPC or if
he decides to impose the punishment higher than three years, he
has to move the learned Chief Judicial Magistrate under Section
325 of the Cr.PC who is authorized to pass the maximum
punishment of seven years. In this circumstances, category-A of
the judgment delivered in the case of Satender Kumar Antil vs.
Central Bureau of Investigation & Anr., [(2022) 10 SCC 51]
would be attracted. He would further submit that it is
incumbent to issue notice under Section 41 or 41-A of Cr.PC
before arresting the accused. In the present case, since the
investigating officer has not issued any notice and therefore
arrest cannot be authorized.
5.2 Learned Advocate Mr.Mangukiya would further submit
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that in case of Satender Kumar Antil (supra) , the Hon'ble Apex
Court has emphasized on the principle of bail and not the jail
and therefore he would submit that petitioner should be
enlarged on anticipatory bail as he has not committed any
offence. He would further submit that FIR is filed to evade the
liability from agreement to sell.
5.3 Learned Advocate Mr.Mangukiya would further submit that
petitioner is resident of Ahmedabad District and holds the
movable and immovable property and there is no flight risk and
readily available for investigation and if required he will join the
investigation. He would further submit that petitioner is ready
and willing to co-operate with the investigation and will abide by
any of the conditions that may be imposed by this Hon'ble Court.
He would therefore submit to allow this petition.
6. On the other hand, learned Advocate for the first informant
Mr.Hriday Buch alongwith Mr.Trivedi, learned Advocate would
submit that though the agreement to sell is dated 2002, it has
never seen the light upto 2023 and it comes to the picture when
the revenue proceedings were taken place qua disputed land. He
would submit that petitioner has placed on record the agreement
to sell which is forged and fabricated one and claimed that
disputed property is sold to him by way of agreement to sell. He
would further submit that subsequent to revenue proceeding,
civil proceeding also taken place and petitioner unsuccessfully
claimed that he is holder of the land by virtue of agreement to
sell. He would further submit that learned civil court rejected the
suit under O.7 R.11 of CPC which has been confirmed by this
Court by dismissing the First Appeal No.5099 of 2023.
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6.1 After making above submissions, learned Advocate for the
petitioner would further submit that land adjacent to the
disputed land belongs to the cousin of the first informant was
sold in the year 2006 in favour of the petitioner; petitioner yet at
that time did not disclose anything that he holds any agreement
to sell and there is no show or demonstration that he is also
owner of the land belonging to the first informant by virtue of
agreement to sell and therefore prima facie case is made out that
the agreement to sell in dispute is forged and fabricated one. He
would further submit that xerox copy of agreement to sell first
came to light in revenue proceedings and then in civil
proceedings copy whereof is placed before the Mr.Vijay Zala,
Advocate who is an expert in forensic science handwriting and in
view of Annexure-R1, he clearly opined that signature on the
agreement to sell is not normal signature of Dodiya Govindsinh
and therefore prima facie evidence is on record to indicate that
signature of the agreement to sell is forged with a view to grab
the disputed land. He would further submit that petitioner is
habitual in grabbing the land by forging agreement to sell. By
referring to Annexure-R2, learned Advocate Mr.Buch would
submit that as many as four complaints of the land grabbing are
filed against the petitioner and thus conduct of the petitioner
indicates that he is habitual offender in forging and fabricating
the documents such as agreement to sell and thus petitioner
may not be released on anticipatory bail.
7. Learned APP Mr.Patel for the respondent - State would join
and adopt the arguments canvassed by the learned Advocate for
the first informant and reliance is also placed upon the affidavit
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of the IO. He would submit that since IO has one more time
asked the petitioner to produce the original agreement to sell by
written intimation; but petitioner is not co-operating in the
investigation and is not producing the original agreement to sell.
He would further submit that police also inquired at the home
and village of the petitioner; but he is not found anywhere. Thus,
the petitioner is absconding and evading the arrest which
indicates that petitioner is not co-operating with the
investigation and therefore anticipatory bail application may be
rejected.
8. Having heard learned Advocates appearing for the
respective parties, at the outset, I may refer to the observations
made by the Hon'ble Apex Court in the case of Lavesh vs. (NCT
of Delhi) reported in (2012) 8 SCC 730 whereby the Hon'ble Apex
Court has declined to grant anticipatory bail in the case of
accused being absconding and not co-operating with the
investigation. Relevant paragraph 10 and 13 reads thus:
"10. From these materials and information, it is clear that the present
appellant was not available for interrogation and investigation and
declared as "absconder". Normally, when the accused is "absconding"
and declared as a "proclaimed offender", there is no question of
granting anticipatory bail. We reiterate that when a person against
whom a warrant had been issued and is absconding or concealing
himself in order to avoid execution of warrant and declared as a
proclaimed offender in terms of Section 82 of the Code is not entitled
the relief of anticipatory bail.
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13. Taking note of all these aspects, in the light of the conditions
prescribed in Section 438 of the Code and conduct of the appellant
immediately after the incident as well as after the interim protection
granted by this Court on 23.03.2012, we are of the view that the
appellant has not made out a case for anticipatory bail. Unless free
hand is given to the investigating agency, particularly, in the light of
the allegations made against the appellant and his family members,
the truth will not surface."
9. Now insofar as the case on hand is concerned, it appears
that one Mr.Vijay Zala, Advocate who is an expert in forensic
science handwriting, in view of Annexure-R1, has opined that
signature on the agreement to sell is not normal signature of
Dodiya Govindsinh and not matching with his natural
handwriting and therefore prima facie evidence is on record to
indicate that signature on the agreement to sell dated
27/09/2002 is forged and fabricated by the petitioner with a
view to grab the disputed land. Indeed, it is subject of
investigation; but prima facie as stated herein above, no adverse
aspect to the opinion of the handwriting expert comes on record.
Besides, the said agreement to sell first time appeared during the
revenue proceedings when sale-deed was executed qua disputed
land and revenue entry was to be mutated. Timing of producing
the agreement to sell is also important. Agreement to sell was
never seen the light till the sale-deed of the disputed land is
executed by the owner. It is placed only during the revenue
proceedings. The petitioner has also unsuccessfully tried to put
cloud over the title of the suit by filing SCS No.88 of 2023 for
specific performance of the agreement to sell which is said to
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have been executed in the year 2002. The said suit came to be
rejected under O.7 R.11 of the CPC which is unsuccessfully
challenged before this Court in First Appeal as noted herein
above and thus it appears that prima facie the petitioner is
indulged into commission of offence and therefore custodial
interrogation is necessary.
10. Moreover, on going through the Annexure - R2, it appear
that as many as four complaints of similar nature is also filed
which shows that petitioner is habitual offender and therefore
anticipatory bail cannot be granted in such cases where
custodial interrogation of the petitioner - accused is necessary.
11. It was argued by learned Advocate Mr.Mangukiya that
since the offence is triable by learned JMFC in view of Section 29
of the CrPC, the punishment not more than three months can be
imposed and if he feels that sentence is required to be imposed
more than three years, in view of Section 325 of CrPC, he is to
refer the matter to learned CJM. He would further argue that
learned CJM also cannot impose sentence more than seven
years. In that way, in an offence under Section 467 of the IPC
the maximum punishment which can be imposed is upto seven
years and thus notice under Section 41 or 41-A of Cr.PC is
required to be issued before arrest.
12. The above submission can be answered by saying that in
offence under Section 467 of IPC the maximum punishment
prescribed is imprisonment for life or imprisonment upto ten
years and also liable to fine. As per the first schedule of the
CrPC, the offence is triable by Magistrate. In this juxtaposition,
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it cannot be said that merely because the offence is triable by the
learned JMFC the maximum punishment under Section 467 of
ICP can be imposed only upto seven years. The Code of Criminal
Procedure has inbuilt mechanism to deal with such kind of
issue, where the offences is tribal by the magistrate, but
maximum punishment which can be imposed is up to life. In
this circumstances, the argument canvassed by learned
advocate, Mr Mangukiya is not palatable.
13. At this juncture, I may refer to Pratibha Manchanda and
another Vs. State of Haryana and another reported in (2023) 8
SCC 181, wherein the Hon'ble Apex Court in para 21, observed
as under:-
"21. The relief of anticipatory bail is aimed at safeguarding
individual rights. While it serves as a crucial tool to
prevent the misuse of the power of arrest and protects
innocent individuals from harassment, it also presents
challenges in maintaining a delicate balance between
individual rights and the interests of justice. The tight rope
we must walk lies in striking a balance between
safeguarding individual rights and protecting public
interest. While the right to liberty and presumption of
innocence are vital, the court must also consider the
gravity of the offence, the impact on society, and the need
for a fair and free investigation. The court's discretion in
weighing these interests in the facts and circumstances of
each individual case becomes crucial to ensure a just
outcome."
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14. Ordinarily, arrest is a part of the procedure of the
investigation to secure not only the presence of the accused, but
several other purposes. Power u/s 438 of the Code is an
extraordinary power and the same has to be exercise sparingly in
appropriate and fit case. This privilege should be extended only
in exceptional cases. It is a judicial discretion conferred upon the
court, and it is to be properly exercised after application of mind
as to the nature and gravity of the accusation, possibility of the
applicant fleeing from justice and other factors to decide whether
it is a fit case for grant of anticipatory bail. Grant of anticipatory
bail to some extent interferes in the sphere of investigation of an
offence and hence, the Court must be circumspect while
exercising such power for grant of anticipatory bail. Anticipatory
bail is not to be granted as a matter of rule and it has to be
granted only when the Court is convinced that exceptional
circumstances exist to resort to that extraordinary remedy. The
fact of the case demands custodial interrogation of the petitioner.
Under the circumstances, the petitioner is not entitled for
anticipatory bail.
15. In view of the above, no case is made out to exercise the
extraordinary jurisdiction to grant anticipatory bail. Accordingly,
present petition fails and stands dismissed. Needless to say that
observations made herein above are limited to decide the present
application.
(J. C. DOSHI,J)
sompura
