Gujarat High Court
Jagdishbhai @ Jagabhai Jalabhai Mer vs State Of Gujarat on 23 January, 2024
NEUTRAL CITATION
R/CR.MA/22641/2021 CAV ORDER DATED: 23/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 22641
of 2021
==========================================================
JAGDISHBHAI @ JAGABHAI JALABHAI MER
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR ZUBIN BHARDA WITH MR. KISHAN H DAIYA(6929) for the Applicant(s)
MR SAMIR AFZAL KHAN(3733) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 23/01/2024
CAV ORDER
1. 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.11210023212041
of 2021 registered with Khatodara Police Station, District -
Surat.
2. Facts of the case are as under :-
2.1. It is stated in the FIR that Jahangir Dara Khajotiya sold
the land with survey no.66/3 block no.154 in District Surat,
sub-district Majirana, village Khajodena to the complainant and
gave complainant a power of attorney to deal with legal matters
related to the concerned land on behalf of him. The complainant
and Jahangir Dara Khajotiya made agreement on 30.03.2021. It
NEUTRAL CITATION
R/CR.MA/22641/2021 CAV ORDER DATED: 23/01/2024
undefined
is alleged by complainant that original owner of the concerned
land belongs to Jahanigr Baheramji Khajotiya who was the
grand father of Jahanigr Dara Khajotiya after whose death Dara
Jahangir Khajotiya son of the original owner and father of
Jahangir Dara Khajotiya got the ownership of the land. After the
death of Dara Jahangir Khajotiya and his wife, Jahangir Dara
Khajotiya became owner of the land through Will. It is alleged by
the complainant that they came to know that the accused Aadi
Darayas Babekon made a false Will for the concerned land in
favour of his mother Maltiben Darayas Babekon daughter of the
original owner and sister of Dara Jahangir Khajotiya. It is further
alleged that accused wrongly got the ownership of thel and after
the death of his mother and wrongly sold the concerned land to
Jagdishbhai Jalabhai Mer through brokers accused Devabhai
Malabhai Bharward and Ramnarayan Gajjar. It is alleged that
co-accused Dalpatbhai Patel, Dimpleben Patel and Karunaben
Patel have illegally put board. It is alleged that all the accused
have co-conspired and illegal grabbed the complainant's land
and accordingly, FIR came to be lodged.
3. Learned advocate Mr.Zubin Bharda for the petitioner
submits that there is delay of five months in lodging FIR. He
would submit that the petitioner is innocent. The petitioner has
not fabricated any documents nor used same as genuine one. He
would submit that disputed Will whether is bogus or genuine
can be decided by the Civil Court and not by criminal
proceedings. He would submit that Revenue officers have
considered the Will produced by the petitioner as genuine one
NEUTRAL CITATION
R/CR.MA/22641/2021 CAV ORDER DATED: 23/01/2024
undefined
and posted revenue entry. Later on Collector has cancelled the
revenue entry but not by coming to conclusion that entry was
posted on basis of forged Will. He would submit that since civil
dispute exists, all these aspects can be considered during trial.
He would submit that dispute pertains to documentary evidence
and all documentary evidence are lying with the Investigating
Officer. He would submit that the petitioner has twice remained
present before the Investigating Officer after he being protected
by this Court on 23.12.2021 and cooperated in investigation. He
would submit that the petitioner is ready and willing to
cooperate investigation as and when called by Investigating
Officer. He would further submit that subsequently, revenue
entry of questioned land has been mutated in favour of the first
informant. He has sold the property to third party and as such
no dispute remains about petitioner grabbing the questioned
land. He would further submit that petitioner belongs to same
area. He has movable and immovable property. There is no flight
risk; the petitioner is ready and willing to co-operate in
investigation. Upon above submission, it is submitted to grant
anticipatory bail.
4. On the other hand, learned advocate Mr.Samir Afzal Khan
for first informant raised objection and argued that the petitioner
and other accused have designed and adopted systematic
approach. They attempted to grab bona vacantia lands belongs
to Parsi Community who left Surat and neighbouring districts
and settled somewhere else. It is submitted that the petitioner
has forged Will of Maltiben and tried to grab land of Jahagir
Behram Khajotia i.e. grandfather of the first informant. Deceased
NEUTRAL CITATION
R/CR.MA/22641/2021 CAV ORDER DATED: 23/01/2024
undefined
Maltiben had nothing to do with Khajotia family. Taking aspect
that Maltiben was serving in the family, forged Will was prepared
by the petitioner and others and it has been used as genuine
before the revenue authority. Revenue entry was also mutated
but as soon as it came to the knowledge of first informant, he
approached revenue authority and ultimately revenue entry was
reversed in name of class I heirs of deceased Jahagir Behram
Khajotia. It is submitted that present petitioner who is operating
gang of grabbing bona vacantia land should not be given
extraordinary relief and thus submitted to dismiss bail
application.
5. Adopting arguments of learned advocate Mr.Khan for first
informant, learned APP would submit that though petitioner
remained twice present before the Investigating Officer, but the
fact remains that he and other accused have fabricated Will and
tried to grab land of first informant. It is systematic approach on
the part of the petitioner to grab land belonging to Parsi
community by preparing forged and fabricated Will. Thus, the
petitioner may not be granted bail.
6. Having heard learned advocate for the parties, let refer the
judgment of Hon'ble Apex Court in the case of Bhadresh
Bipinbhai Sheth Vs. State of Gujarat reported in AIR 2015 SC
3090, wherein, the Hon'ble Apex Court delineated the following
factors and parameters that needs to be taken into consideration
while dealing with the anticipatory bail.
"(a) The nature and gravity of the accusation and the
NEUTRAL CITATION
R/CR.MA/22641/2021 CAV ORDER DATED: 23/01/2024
undefined
exact role of the accused must be properly
comprehended before arrest is made;
(b) The antecedents of the applicant including the fact
as to whether the accused has previously undergone
imprisonment on conviction by a court in respect of any
cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused's likelihood to repeat
similar or other offences;
(e) Where the accusations have been made only with the
object of injuring or humiliating the applicant by
arresting him or her;
(f) Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large number
of people;
(g) The courts must evaluate the entire available
material against the accused very carefully. The court
must also clearly comprehend the exact role of the
accused in the case. The cases in which the accused is
implicated with the help of Sections 34 and 149 of the
Penal Code, 1860 the court should consider with even
greater care and caution, because over implication in
the cases is a matter of common knowledge and
concern;
(h) While considering the prayer for grant of
anticipatory bail, a balance has to be struck between
two factors, namely, no prejudice should be caused to
free, fair and full investigation, and there should be
prevention of harassment, humiliation and unjustified
detention of the accused;
(i) The Court should consider reasonable apprehension
of tampering of the witness or apprehension of threat to
the complainant;
(j) Frivolity in prosecution should always be considered
NEUTRAL CITATION
R/CR.MA/22641/2021 CAV ORDER DATED: 23/01/2024
undefined
and it is only the element of genuineness that shall
have to be considered in the matter of grant of bail and
in the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of
events, the accused in entitled to an order of bail."
7. What appears from the record that by order dated
23.12.2021, the petitioner is protected by the Co-ordinate Bench
of this Court. Interim relief granted by this Court is continued till
then. It is undeniable fact that the petitioner has joined
investigation whenever he was called. He appeared before the
Investigating Officer twice and is also ready and willing to appear
before the Investigating Officer to join investigation. What further
appears that issue has civil nature. The petitioner is claiming
title through Will. At the first instance, revenue authority
believed genuineness of Will, but Collector has reversed the
order. This indicates that entire issue between the parties is
based upon documentary evidence and all documentary evidence
are lying with the Investigating Officer. The petitioner is
protected since the year 2021. In these circumstances, it can be
said it is case where no custodial interrogation is called for. It is
fit case to exercise discretion in favour of the petitioner. This
Court is not inclined to go into merits of the issue whether Will is
bogus or genuine or whether revenue entry are rightly or wrongly
posted as decision on that would effect case of the prosecution or
defence of the accused. It may have some repercussion on civil /
revenue litigation between the parties. Since the petitioner has
not misused his liberty since the year 2021, he is required to be
released on anticipatory bail.
NEUTRAL CITATION
R/CR.MA/22641/2021 CAV ORDER DATED: 23/01/2024
undefined
8. It is equally incumbent upon the Court to exercise its
discretion judiciously, cautiously and strictly in compliance with
the basic principles laid down in a plethora of decisions of the
Hon'ble Apex Court on the point. It is well settled that, among
other circumstances, the factors to be borne in mind while
considering an application for bail are (i) whether there is any
prima facie or reasonable ground to believe that the accused had
committed the offence; (ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction; (iv)
danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the
accused; (vi) likelihood of the offence being repeated; (vii)
reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
Though at the stage of granting bail an elaborate examination of
evidence and detailed reasons touching the merit of the case,
which may prejudice the accused, should be avoided.
9. This Court while exercising discretion in favour of the
petitioner has taken into consideration law laid down by the
Apex Court in the case of Siddharam Satlingappa Mhetre vs.
State of Maharashtra and Ors. [2011] 1 SCC 694, wherein the
Hon'ble Apex Court reiterated the law laid down by the
Constitutional Bench in the the case of Shri Gurubaksh Singh
Sibbia & Ors. Vs. State of Punjab (1980) 2 SCC 665. This Court
has also taken into consideration law laid down in the case of
Sushila Agarwal v/s. State (NCT of Delhi [(2020) 5 SCC 1].
NEUTRAL CITATION
R/CR.MA/22641/2021 CAV ORDER DATED: 23/01/2024
undefined
10. In the result, the present petition is allowed by directing
that in the event of applicant herein being arrested pursuant to
FIR registered as C.R.No.11210023212041 of 2021 registered
with Khatodara Police Station, District - Surat, the petitioner
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 that the petitioner :
(a) shall cooperate with the investigation and make
himself available for interrogation whenever required;
(b) shall remain present at concerned Police Station on
29.01.2024 and 30.01.2024 between 10.00 a.m. and
4.00 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;
11. If breach of any of the above conditions is committed by
the petitioner, the concerned learned Judge will be free to take
appropriate action in the matter. It will be open for the
NEUTRAL CITATION
R/CR.MA/22641/2021 CAV ORDER DATED: 23/01/2024
undefined
concerned Court to delete, modify and/or relax any of the above
conditions in accordance with law. At the trial, the Trial Court
shall not be influenced by the prima facie observations made by
this Court while enlarging the petitioner on bail.
12. Direct service is permitted.
(J. C. DOSHI,J)
SATISH
