Arvindbhai Narsinhbhai Akbari vs State Of Gujarat
2024 Latest Caselaw 5412 Guj

Gujarat High Court

Arvindbhai Narsinhbhai Akbari vs State Of Gujarat on 25 June, 2024

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   R/CR.MA/10724/2024                        ORDER DATED: 25/06/2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
 R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE ANTICIPATORY
         BAIL - BEFORE CHARGESHEET) NO. 10724 of 2024
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                 ARVINDBHAI NARSINHBHAI AKBARI
                              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
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                        Date : 25/06/2024

                          ORAL ORDER

[1.0] RULE returnable forthwith. Learned APP waives service of notice for the respondent-State.

[2.0] By way of the present successive application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11822015230772 of 2022 with Jalalpore Police Station, District Navsari for the offences punishable under Sections 465, 467, 468, 471, 201 and 120(B) of the Indian Penal Code, 1860.

[3.0] Brief facts of the case are that the present applicant - accused in connivance with the co-accused has prepared a power of attorney on 31.05.2005 of the father of the complainant and on the basis of the same, sold out the property of the father of

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the complainant in favor of wife of accused No.1 whereas the father of the complainant viz. Keshavbhai Rambhai Patel died way back on 25.05.1984. It is further the case of the prosecution that, the present applicant had identified a person viz. Keshavbhai Rambhai Patel as father of the complainant despite knowing the fact he has died before 20 years and in these circumstances the FIR came to be filed.

[4.0] Learned advocate Mr. B.M. Mangukiya for the applicant has submitted that the applicant has nothing to do with the offence and is falsely implicated. It is submitted that the complaint was filed belatedly though the alleged forged power of attorney was created in the month of May, 1984. Further, the offences alleged against the applicant are punishable with maximum imprisonment of 7 years. Nothing is required to be recovered or discovered from the present applicant. Even, the charge-sheet is filed wherein also clearly stated the alleged forged power of attorney is not available and charge under section 201 of the IPC is also alleged. Considering the aforesaid fact, in absence of any document, no offence is made out qua forgery. Even, the applicant is not at all aware as to whether the power of attorney on the basis of which sale deed is forged and fabricated document. Further, the applicant is local inhabitant of Navsari and there is no flight risk and as the entire case is based on documentary evidence which is already in the custody of the investigating agency, no custodial interrogation of the applicant is required. Hence, he has requested to allow the present

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application.

[5.0] Learned APP has taken this Court through the FIR and other investigation papers and has submitted that, prima facie, there is a strong case against the applicant. He has further submitted that present is a successive anticipatory bail application. Present applicant is out of reach of the investigation and even warrant under Section 70 of the CrPC is also issued against the applicant and earlier bail application came to be disposed of as withdrawn but no liberty as given and therefore, successive application for anticipatory bail is not maintainable. Present applicant has scuttled the investigation since long and tampered with evidence taking undue advantage and due to this forged document also could not be collected by the investigating agency and therefore also, custodial interrogation of the applicant is required and even the Notary before whom the document was executed is also required to be thoroughly investigated. Further, if the applicant is released on bail, the investigation may never reach to its conclusion. The applicant is an absconder, and this is successive bail application earlier application being disposed of as withdrawn. Hence, he has requested to dismiss the present application.

[6.0] Heard the learned advocates for the respective parties and considered the FIR as well as the charge-sheet papers. I have also perused the warrant dated 15.03.2024 issued under Section 70 of the CrPC against the present applicant. The applicant has till date

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did not appear or join the investigation even pursuant to the issuance of warrant under Section 70 of the CrPC. Hence, the applicant has remained an absconder, causing the investigation regarding the present applicant to remain pending.

[7.0] Insofar as maintainability of present successive application for anticipatory bail is concerned, it is a matter of record that the charge-sheet has been filed however, it is important to note that in the charge-sheet, the applicant is shown as an absconder in column No.2 and investigation qua present applicant is still pending. In absence of a completed investigation, the present applicant cannot claim that no evidence has been collected against him. Even on the grounds that the charge-sheet has been filed, the present application must be considered; this argument is not sustainable. Furthermore, the present application is a successive application for anticipatory bail, which should not be entertained, especially when the investigation papers clearly reveal that the applicant is not cooperating with the investigation. Hence, the special reason for a change in circumstance cannot be invoked for the successive anticipatory bail application.

[7.1] Further, from the investigation papers it clearly reveal that the present applicant has remained absconding despite issuance of warrant under Section 70 of the CrPC on 15.03.2024 and therefore, in view of the law laid down by the Hon'ble Apex Court in case of State of Haryana vs. Dharamraj reported in 2023 INSC 784; Lavesh vs. (NCT of Delhi) reported in (2012) 8 SCC

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730; Abhishek vs. State of Maharastra reported in 2022 (8) SCC 282; Prem Shankar Prasad vs. State of Bihar reported in 2021 SCC OnLine SC 955 and Srikant Upadhyay and Others vs. State of Bihar and Another reported in 2024 SCC OnLine SC 282, no case is made out to grant the anticipatory bail.

[7.2] Insofar as the submission on behalf of the applicant that in the present case, no custodial interrogation is required is concerned, it is required to mention that herein, prima facie case is made out against the present applicant and there are serious allegations against the applicant. Thus, in order to reach to a logical conclusion of the investigation, the Investigating Officer deserves a free hand. There is no rule that if custodial interrogation is not required then anticipatory bail is required to be granted. The custodial interrogation is one of the good grounds to reject the anticipatory bail application but merely because custodial interrogation is not required, itself is not a ground to allow the anticipatory bail application. In this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Sumitha Pradeep Vs. Arun Kumar C.K. reported in 2022 SCC OnLine (SC) 1529, wherein it is observed and held as follows:

"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

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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."

In view of the above decision and in view of the facts and circumstances of this case, custodial interrogation of not only the applicant, but all other suspect/s is therefore imperative to unearth the truth. Hence, this is a not a fit case to exercise the jurisdiction in favour of the applicant when present is a successive application as earlier application was disposed of as withdrawn.

[7.3] Further, in the case of Pratibha Manchanda vs The State of Haryana, reported in AIR 2023 SC 3307, wherein the Hon'ble Apex Court has held in Para 19 as under:

"19. 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."

[7.4] Herein, I have gone through the material available against

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the accused very carefully, from which, it reveals that no complaint has been made with view to humiliating or tarnish the image of the present applicant. Even in Jai Prakash Singh V/s State of Bihar and another, reported in (2012) 4 SCC 379, Honourable Supreme Court pleased to hold:

"Parameters for grant of anticipatory bail in a serious offenceare required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."

[7.5] The object of anticipatory bail is that person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. In present case, no any such sort of allegation or bias is found out it is needless to say that order under Section 438 of the CrPC is not a passport to the commission of trial nor a shield against any serious accusation, which adversely affects the society.

[8.0] Even, on merits also, present applicant is named in the complaint and it is alleged that in connivance and in collusion of co-accused Mansukhbhai, present applicant has forged the power of attorney and by identifying and impersonating himself as an Advocate he has purchased the stamp paper and forged the power of attorney. Even, the stamp paper was purchased in the name of a dead person viz. Keshavbhai Ramabhai Patel on 25.02.1984 and his power of attorney was notarized before the Notary by hatching criminal conspiracy. Even, the present

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applicant has forged the power of attorney and got executed the sale deed in the year 2005 in favor of co-accused Labhuben Gordhanbhai Patel and the said stamp paper was also purchased by the present applicant on 11.05.2005 and he has also put his signature as a witness in the said subsequent transaction. Present applicant is the main conspirator and at his instance entire offence is committed. He has prepared the forged document and done forgery. Prima facie, involvement of the present applicant is there and considering the role attributed to the present applicant and perusing the police papers also, applicant did not cooperate with the investigation and hence, warrant under section 70 of the CrPC came to be issued on 15.03.2024 however, the applicant till date has not cooperated or responded to the I.O. and/or joined the investigation. Merely because the offence is punishable with maximum punishment of 7 years is not a ground to grant anticipatory bail to the applicant.

[8.1] This Court is of the considered view that if the present applicant / accused is equipped with protective order, it would obviously adversely affect the case of the prosecution and the qualitative investigation as the applicant is absconding, having trained legal mind and he will tamper with evidence and witnesses of prosecution.

[9.0] In view of the above, as there is no change in the circumstance which means the reasoning given by the learned Sessions Judge attained the finality and in absence of any change

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in circumstance, the present application for anticipatory bail deserves to be dismissed in light of the law laid down by this Court in the case of State of Gujarat vs Kanaksinh Mohansinh Mangrola reported in 2005 (1) GLH 665, wherein this Court held as under:

"While deciding the second successive anticipatory bail application of the respondent no.1-accused, learned Sessions Judge has not taken into consideration the following aspects. Due to change in circumstance, party can approach the court below or the High Court under Sec.438 of the Code and court can deal with that point of change in circumstance only. However, the court cannot enter into the grounds which were previously contested by the parties and have become final. Here in this case, court below has violated the basic principle of law laid down by the Apex Court on this point by dealing with all points raised by the accused in the first application filed under Sec.438 of the Code and which were already decided by the learned Addl. Sessions Judge, Surat, in detail with prima-facie reasons. Said order was carried further by the accused in the High Court and at the end of arguments, it was withdrawn and hence it has become final between the parties and hence, learned Sessions Judge should not have dealt with the same points again in the successive anticipatory applications."

[9.1] Despite the dismissal of earlier bail application, the applicant has filed this subsequent anticipatory bail application without any change in the circumstance of the case. In this regard also, reference needs to be made to the judgment of the Hon'ble Supreme Court in the case of G.R. Ananda Babu vs The State of Tamil Nadu reported in 2021 SCC Online SC 176.

[10.0] In view of the above, this Court is of the considered opinion that if the present applicant is released on bail, he could

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potentially obstruct the ongoing investigation. Therefore, for a thorough and qualitative investigation, custodial interrogation of the applicant is deemed necessary. Hence, this Court is not inclined to entertain the present application and same is accordingly dismissed. Rule is hereby discharged.

(HASMUKH D. SUTHAR, J.)

Ajay