Gujarat High Court
Mahendrabhai Pujyabhai Patel Thro ... vs State Of Gujarat on 31 January, 2024
NEUTRAL CITATION
R/CR.MA/1860/2023 ORDER DATED: 31/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
1860 of 2023
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MAHENDRABHAI PUJYABHAI PATEL THRO BIPINBHAI PUJYABHAI
PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR NV GANDHI(1693) for the Applicant(s) No. 1
MR HARDIK A DAVE(3764) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/01/2024
ORAL ORDER
1. By way of the present petition under Section 439(2) of the
Code of Criminal Procedure, 1973, the petitioner has prayed to
quash and set aside the order dated 02.01.2023 passed by the
learned 7th Additional Sessions Judge, Bardoli, Surat in
Criminal Misc. Application No.838 of 2022, whereby the learned
Session Judge has granted regular bail to the respondent -
original accused.
2. Heard learned advocate for the petitioner.
3. Learned advocate for the petitioner though strongly argued
to cancel the bail on submission that the learned Sessions Court
while granting bail did not consider the factors to be considered
for granting or rejecting the bail, has failed to submit any
supervening circumstances being rendered it in conducing to
allow fair trial.
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4. Learned advocate for the petitioner also argued that
impugned order in favour of respondent accused is contrary to
law. It is submitted that accused named in the FIR have
hatched conspiracy in collusion with each other and fabricated
bogus documents including registered sale deed by presenting
POA with a view to grab the subject land. It is submitted that
considering seriousness of offence as per affidavit of IO,
impugned order is required to be quashed. It is submitted that
learned Trial Court has failed to consider that on 01.11.2022
when petitioner had obtained the revenue records of subject
land, he came to know that on the basis of forged and concocted
POA, one Bharatbhai Patel has conveyed and sold the subject
land in favour of respondent accused. Learned advocate for the
petitioner in support of his contentions has relied on judgment of
Hon'ble Apex Court in the case of Kanwar Singh Meena v/s.
State of Rajasthan [AIR 2013 SC 296] and in the case of Mansoor
Alam v/s. State of UP [AIR 2015 SC(Supp) 2019]. Therefore, it is
submitted to allow the petition.
5. In Bhagwan Singh v Dilip Kumar @ Deepu @ Depak
reported in 2023 INSC 7613, the Hon'ble Apex Court after
considering judgment in case of Dolat Ram v State of Haryana,
(1995) 1 SCC 349; Kashmira Singh v Duman Singh, (1996) 4
SCC 693 and X v State of Telangana, (2018) 16 SCC 511, held as
follows:
'13. It is also required to be borne in mind that when a prayer is
made for the cancellation of grant of bail cogent and
overwhelming circumstances must be present and bail once
granted cannot be cancelled in a mechanical manner without
considering whether any supervening circumstances have
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R/CR.MA/1860/2023 ORDER DATED: 31/01/2024
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rendered it in conducing to allow fair trial. This proposition draws
support from the Judgment of this Court in Daulat Ram and
others v. State of Haryana reported in (1995) 1 SCC 349,
Kashmira Singh v. Duman Singh (1996) 4 SCC 693 and xxx v.
State of Telangana (2018) 16 SCC 511.'
6. While granting bail, learned Sessions Judge has recorded
reasons in para 6,7 and 8. The reasons are in vernacular
language Gujarati but for understanding they are translated in
English which are as follows :-
"(6) Upon perusal of the police inquiry papers in this case
and considering the facts of the complaint, charge under
Sections-465, 467, 468, 471, 120(B) of the IPC is levelled
against the accused. Considering the facts of the offence in
this matter, the original owner of the land bearing
Zankharda Village Block No.77, Survey No. 46/2, Block
No.83, Survey No. 47/2, namely, Mahendrabhai Pujiyabhai
Patel is residing at America and one bogus individual
having the same name, who is living at Ankleshwar, was
wrongfully produced as the land owner and, thereby,
Power-of-Attorney in respect of the said land was given to
the co-accused Bharatbhai Ishwarbhai Patel and on the
basis of the said Power-of-Attorney, co-accused Bharatbhai
Patel had executed a sale-deed in respect of the above-
mentioned land to the present applicant. In the said forged
/ bogus Power-of-Attorney, the co-accused Mohammad
Mobin Javed Ansari and Imran Javed Shaikh had made
signatures as witnesses and the co-accused Yakubbhai
Soni and AbdulAziz Shaikh had, even though they were
aware of the fact that the sale-deed was bogus / forged,
made their signatures as witnesses. Thus, in the instant
matter, the individual person having similar name as the
original owner of the land mentioned in the complaint was
produced as owner of the land and he had executed a
Power-of-Attorney in the name of co-accused Bharatbhai
and on the basis of that Power-of-Attorney, the sale-deed
has been executed in favour of the present applicant.
(7) The sale-deed in respect of the the lands of the
Zankharada Village mentioned in the complaint has been
executed in favour of the present applicant. Upon reading
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over the complaint and papers of police inquiry, it does not
transpire that the present applicant has played any role in
connection with the process of producing a bogus person
as the owner of the land and execution of Power-of-
Attorney in favour of co-accused Bharatbhai Ishwarbhai
Patel by the said person. The original owner of the said
land Mahendrabhai Pujiyabhai is residing at America and
another co-accused having similar name like him, who is
residing at Ankleshwar, had, by adopting / projecting his
name as the owner of the said land and by producing
wrong evidences, executed a bogus Power-of-Attorney in
favour of co-accused Bharatbhai and on the basis of the
said Power-of-Attorney, the sale-deed has been executed in
favour of the present applicant. Upon perusal of the
complaint and police inquiry papers, it does not appear
that that the present applicant has played any role in the
act of creating forged documents. However, it also does not
transpire that the present applicant has made any bogus
signature.
(8) Considering the facts of the matter, the present case
is based on the documentary evidences and it also appears
that the important documents have been seized during the
police inquiry. Considering the alleged offenses against the
applicant, any allegation allegation for the offence
punishable under capital punishment has not been leveled
against him. The present applicant is a permanent resident
of Kamrej Taluka of Surat District, considering such fact, it
appears that his presence shall be easily available at the
time of trial. Moreover, looking to the nature of the
offence, it also does not appear that the accused might
tamper with the documents. The trial for the offenses
against the accused is liable to be conducted before the
Lower Court and looking to the burden of the cases in the
Lower Courts, it might take a long duration of time for the
trail to be conducted. Upon looking to the affidavit of the
Inquiry Officer, there appears to be one other offence
registered against the applicant at Kamrej Police Station,
but only due to that one reason, the accused cannot be
denied bail. Thus, in view of the above circumstances, it
does not transpire that any specific object of the Law
would be served by keeping the accused in judicial custody
as under trial prisoner. In view of all of the above factors
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as well as the principles established in the Judgment of
the Honourable Supreme Court of India in the matter of
Sanjay Chandra Versus C.B.I., 2012 Criminal Law
Journal, Page Number: 702 (S.C.), it appears just and
reasonable to release the accused on bail subject to
appropriate conditions; therefore, following order is passed
hereby.
7. What appears that respondent accused has not played any
role to forge the document or POA. He is bona fide purchaser of
the disputed land. Registered sale deed has been executed and it
was approved by the registering authority under the registration
Act. Learned Sessions Judge has taken all these aspects into
consideration while enlarging the accused on bail. Reasons
assigned by the learned Sessions Judge for exercising discretion
appears to be on tenable grounds and therefore, in absence of
any circumstances or extraneous consideration pointed out by
learned advocate for the petitioner, the petition deserves no
consideration.
8. This Court finds no circumstances to adjudge the
impugned order as unjust and contrary to the settled principles
of law. The petitioner has failed to point out supervening
circumstances, which may interfere with the fair trial. It is
required to be noted that respondent accused is person who has
purchased the property and he is not involved in the offence.
Offence is based on the documentary evidence and it is lying
with the Investigating Officer. The judgments relied on
petitioners in the case of Kanwar Singh Meena (supra) and
Mansoor Alam (supra) would not be applicable to the facts of the
present case.
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9. In the case of Bhagirathsinh Jadeja v/s. State Of Gujarat
[1984 (1) SCC 284], the Hon'ble Apex Court in para 6 has held
as under :-
"6. In our opinion, the learned Judge appears to have
misdirected himself while examining the question of
directing cancellation of bail by interfering with a
discretionary order made by the learned Sessions Judge.
One could have appreciated the anxiety of the learned
Judge of the High Court that in the circumstances found
by him that the victim attacked was a social and political
worker and therefore the accused should not be granted
bail but we fail to appreciate how that circumstance should
be considered so overriding as to permit interference with a
discretionary order of the learned Sessions Judge granting
bail. The High Court completely overlooked the fact that it
was not for it to decide whether the bail should be granted
but the application before it was for cancellation of the
bail. Very cogent and overwhelming circumstances are
necessary for an order seeking cancellation of the bail. And
the trend today is towards granting bail because it is now
well-settled by a catena of decisions of this Court that the
power to grant bail is not to be exercised as if the
punishment before trial is being imposed. The only
material considerations in such a situation are whether the
accused would be readily available for his trial and
whether he is likely to abuse the discretion granted in his
favour by tampering with evidence. The order made by the
High Court is conspicuous by its silence on these two
relevant considerations. It is for these reasons that we
consider in the interest of justice a compelling necessity to
interfere with the order made by the High Court."
10. Before parting with the order, I may also refer the
observations made in the recent decision by the Hon'ble Apex
Court in case of Kekhriesatuo Tep and others Vs.National
Investigating Agency reported in (2023) 6 SCC 58. The relevant
observation made in para 20 reads as under:-
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"20. An interference by an Appellate Court and particularly in a
matter when liberty granted to a citizen was being taken away
would be warranted only in the event the view taken by the Trial
Court was either perverse or impossible. On this limited ground,
we find that the appeals deserve to be allowed."
11. Resultantly, present petition fails and stands dismissed.
Notice discharged.
(J. C. DOSHI,J)
SATISH
