Gujarat High Court
Jain Devdatt Babulal vs State Of Gujarat on 20 February, 2025
NEUTRAL CITATION
R/CR.MA/25739/2024 ORDER DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 25739
of 2024
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JAIN DEVDATT BABULAL & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
KISHAN Y DAVE(8293) for the Applicant(s) No. 1,2,3
MR HRIDAY BUCH(2372) for the Respondent(s) No. 2
MR HK PATEL, APP PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 20/02/2025
ORAL ORDER
1. RULE. Learned advocates waive service of notice for the
respective respondents.
2. By way of the present application under Section 482 of
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the
applicant accused has prayed to release him on anticipatory bail
in the event of his arrest in connection with the FIR being I-
C.R.No.97 of 2013 registered with Patan City B Division Police
Station for the punishable under Sections 463, 465, 467, 468,
471, 120B and 114 of the of the Indian Penal Code.
3. The brief facts of the case are that on 14.05.1997, a Sale
Deed (No. 971) was executed by Shri Rajesh Sheth and Shri
Mukesh Sheth in favor of the Applicants for City Survey No.
240/A/6, Revenue Survey No. 73 paiki, covering 489.87 Sq.
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Mtrs. On 02.11.2002, the Applicants executed two sale deeds:
Sale Deed No. 3536 in favor of Oza Mukesh Shantilal and Sale
Deed No. 3537 in favor of Otiya Vimalbhai Chandubhai, each for
183.94.65 Sq. Mtrs. (220 Sq. Yards). Later, on 27.02.2003,
another Sale Deed (No. 577) was executed in favor of Otiya
Dhirenkumar Chandubhai for 125.41.81 Sq. Mtrs. (150 Sq.
Yards). Although the Sale Deed dated 14.05.1997 specified
489.87 Sq. Mtrs., the Applicants allegedly sold a total of
493.31.11 Sq. Mtrs., exceeding the original measurement by
3.44 Sq. Mtrs. On 29.03.2010, the Applicants executed Sale
Deed No. 1804 in favor of Shri Akhil Anjana Kelavni Mandal for
774.80.49 Sq. Mtrs. on an "AS IS WHERE IS" basis, with
mutation Entry No. 3366 certified on 17.04.2010. Allegedly,
knowing they did not own this land, the Applicants fraudulently
sold the common plot of the society, causing illegal financial
gain. It is further alleged that the common plot of Harkornagar
Vibhag - 2 (City Survey No. 226/A/35, 628.12 Sq. Mtrs.) and
Harkornagar Vibhag - 1 (City Survey No. 240/A/9, 172.75 Sq.
Mtrs.) together total 800 Sq. Mtrs., but the Applicants illegally
sold 774.80.49 Sq. Mtrs. They allegedly tampered with the
property card, altering the land description from 489.87 Sq.
Mtrs. to 1489.87 Sq. Mtrs. Based on these allegations, the
Applicants are accused of offenses under Sections 463, 465,
467, 468, 471, 120B, and 114 of the Indian Penal Code, 1860.
4. Learned advocate for the applicants submits that the
applicants herein have nothing to do with the offence and have
been falsely implicated in the present case. It is submitted that
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respondent No.2 has lodged a complaint alleging that he
purchased Plot No.76 of City Survey No. 226/A/7/1, situated at
Harkornagar Society, Patan, on 01/03/2013, and subsequently
sold the property. Hence, the question of personal loss to the
present applicant does not arise. Respondent No.2 has no right
to lodge a complaint, as he has not suffered any loss and has no
grievance. Further, it is submitted that the original Survey Nos.
73 and 76 were converted to non-agricultural land by an order
dated 28/05/1982 issued by the Collector.
4.1 Further, the complainant alleges that the present applicant
purchased land from Revenue Survey No. 73, City Survey No.
240/A/6, on 14/05/1997, admeasuring 489.87 sq. meters. On
different occasions in 2002-03, through three separate sale
deeds, the applicant sold the aforesaid plot. Thereafter, on
29/03/2010, he entered into another transaction and sold
774.80 sq. meters of land to Shri Akhil Anjana Kelavni Mandal.
After this transaction, the complainant purchased the plot three
years later and lodged the complaint. Therefore, the applicant
has had no interest whatsoever in any plot of Harkornagar
Society after 2016, as he had already sold the property. It is
further alleged by the complainant that the present applicant
sold the common plot of Harkornagar Society. However, as per
Section 3 of the Transfer of Property Act, it is presumed that
respondent No.2 purchased the plot with full knowledge of its
status and thereafter sold it merely to file the present litigation.
The complainant cannot be heard to claim that he failed to find
relevant records in the register, as he must bear the
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consequences of his own lack of diligence. Therefore, the
impugned complaint is nothing but a sponsored litigation, as the
complainant is not a bona fide purchaser and did not purchase
the property for personal use. Hence, no offence of forgery is
made out in view of the Supreme Court's judgment in
Mohammad Ibrahim v. State of Bihar, reported in (2009) 8 SCC
751, which clarifies that the accused must have attempted to
deceive the complainant. In this case, the property purchased by
the applicant was through a registered sale deed, and the
property card entry was made by the competent authority.
Therefore, the question of tampering does not arise.
4.2 Furthermore, even if the allegations are accepted as they
are, the dispute regarding the difference in land measurements
between Survey Nos. 73 and 76 is purely a civil dispute and
cannot be adjudicated through criminal proceedings. Applicant
No.1 is a practicing advocate and a senior citizen; Applicant No.2
is a widow; and Applicant No.3 is only 39 years old and was a
minor at the time of the alleged transaction. Hence, custodial
interrogation is unwarranted. In support of this, the learned
advocate for the applicants has relied on the Supreme Court's
decision in Siddharam Satlingappa Mhetre v. State of
Maharashtra, reported in (2011) 1 SCC 694, and has requested
that the present application be allowed.
4.3 It is further submitted that The alleged forgery in the City
Survey record, which reflects measurement of 1,489.87 sq.
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meters for Survey No. 240/A/6, has already been investigated.
The record was seized by the investigating officer in 2015, and
the said measurement was vacated. Revenue proceedings were
filed before the Deputy Collector (Appeal), and subsequently, the
Special Secretary of the Revenue Department passed an order on
16/04/2018 setting aside the Collector's order. Respondent No.2
then preferred a Revision Application before this Court, which
was later withdrawn. Thus, it is evident that this is a clear-cut
civil dispute. A regular civil suit has also been filed by a third
party regarding the aforementioned property. In light of this, no
custodial interrogation is necessary, as the case is based purely
on documentary evidence. The applicant's sale deed clearly
states that the plot admeasuring approximately 1,366 square
yards (equivalent to 1,142.14 sq. meters), with a road width of
12.2 meters. A comparison of the boundary map with the
agricultural map shows a match. The complainant has relied on
the multiplier sheet, which is misleading, baseless, and
inaccurate. The alleged dispute is not bona fide but is merely a
conflict over the measurement of boundary walls. It is well
established that boundaries prevail over measurements, as held
by this Court in the case of Shah Mahendrakumar Nagendradas
v. State of Gujarat, reported in 1983 GLR 108. The applicant has
also relied on the case of Asim Niranjan Chakraborty v. State of
Gujarat, reported in 2012 (1) GCD 328. Upon perusal of the
contents of the FIR, it is evident that the entire story has been
concocted with the intention of falsely implicating the applicants.
4.4 The learned advocate for the applicants submits that the
nature of the allegations does not necessitate custodial
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interrogation at this stage. Moreover, the applicants are available
for investigation and will not flee from justice. In view of the
above, the applicant may be granted anticipatory bail. Further,
Mr. H.M. Parik, learned Senior Advocate assisted by Mr.Kishan
Dave, learned advocate appearing for the petitioner has tendered
a written statement and argued the matter at length.
5. Per contra, Mr. H.K. Patel, learned APP appearing for the
respondent-State, has opposed the application, stating that the
present applicants had earlier preferred an application for
quashing, which was subsequently withdrawn. In view of this
fact, it appears that the applicants are significantly involved in
the offence, as they have committed cheating and forgery. There
is no delay in the lodgment of the complaint, as asserted by the
applicant, nor in the investigation, since the proceedings had
been stayed by the Coordinate Bench of this Court in the
quashing proceedings since 2013. Recently, the quashing
petition was withdrawn. The case is not of a civil nature, as the
complainant's contention is that the common plots of the society
were initially owned by him as a member but were subsequently
sold to the complainant. However, every individual has the right
to initiate criminal proceedings, and this is not a simple civil
dispute where the rights of both parties need to be determined.
The applicant had purchased 489 square meters of land through
three different sale deeds. However, the measurement in the sale
deeds exceeds this limit by 4 square meters. Despite this, he
executed an additional sale deed without any right, title, or
interest in the property. The offence of forgery and cheating was
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committed by tampering with records maintained by the City
Survey Superintendent.
5.1 Further, it is submitted that the applicant, being a
revenue-side practitioner advocate, applied to obtain the
property index and falsely mentioned the measurement of the
plot as 489 square meters. Despite being fully aware of the legal
procedures, an additional 1,000 square meters was fraudulently
added to the computerized records of the survey superintendent
by prefixing "1" to the original measurement in the revenue
records. The manipulated revenue record from the City Survey
Office is missing and remains untraceable to date. During the
revenue proceedings, both the Deputy Collector and the Collector
verified the entire record from the City Survey Office and
concluded that the applicant had purchased only 489 square
meters of land but had illegally sold excess land without any
authority. Consequently, the fraudulent entry in the City Survey
records was canceled. Subsequently, on the grounds of delay,
the applicant challenged the cancellation order before the SSRT,
which was dismissed. Being aggrieved and dissatisfied, the
applicant preferred Special Civil Application No. 18753 of 2018,
wherein this Court passed an order to maintain the status quo
regarding the entry.
5.2 It is further submitted that merely filing a civil suit does
not lessen the burden of proof or camouflage the fraudulent
transaction. The applicant, in collusion with others, took undue
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advantage of his position as a revenue practitioner and forged
public records in the City Survey Office. As a result, he has been
arraigned as an accused. Considering the seriousness of the
offence, custodial interrogation is required. Therefore, the
present application may be dismissed.
6. Mr. Hriday Buch, learned advocate appearing for the
respondent-complainant, submits that the complainant has
lodged a complaint against the fraud committed by the present
applicant. Applicants No. 1 to 3 had purchased land bearing Plot
No. 6, City Survey No. 21486, admeasuring approximately
489.87 square meters, through a registered sale deed dated 14 th
May 1997 in Harkornagar Society. The said plot, as per the
measurement book maintained in the government records of the
District Inspector of Land Records (DILR), also measures 489.87
square meters. However, through different sale deeds dated 2 nd
November 2002 and 27th February 2003, a total of 493.29 square
meters of land was sold, thereby exceeding the original area by
approximately 4 square meters without any legal authority.
Furthermore, the applicant allegedly forged the records by
fraudulently inserting the figure "1" to increase the plot size in
the City Survey Records. Notably, these documents are also
missing from the office of the City Survey Department.
6.1 As the applicant is a practicing advocate specializing in
revenue matters, he has taken undue advantage of his
knowledge. Additionally, excess land measuring 774.80 square
meters was sold to Akhil Anjana Kalavani Mandal on 29th March
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2010. The sale deed clearly states that the property was sold on
an "as-is, where-is" basis. Moreover, although an NA (Non-
Agricultural) order was passed by the District Collector, the
applicants allegedly revised and subdivided the plot mutually
and internally, indicating their fraudulent intent. It is evident
that the applicants, without any legal authority, sold the
common plot of Harkornagar Cooperative Society and unlawfully
became owners of 1,489.87 square meters of land. By using
various pretexts, the applicant has prolonged litigation and
exploited his legal expertise for personal gain. Therefore,
custodial interrogation is required.
6.2 The learned advocate also relies on the mutation entry,
which was subsequently set aside by the revenue authority on
the ground of delay. However, the original complainant and other
society members have approached this Court through Special
Civil Application No. 18753 of 2018, wherein this Court has
directed that the revenue authority shall not alter the mutation
entry in any case.
6.3 It is submitted that a civil suit has already been filed to
determine the rights of the parties and the validity of the sale
deed itself. However, this does not diminish or obscure the
offense committed by the applicant. Although the applicants
originally purchased a plot measuring 489.87 square meters,
they fraudulently increased its size to 1,489.87 square meters.
The said document, being a government record, has been forged,
necessitating custodial interrogation. This is not merely a civil or
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boundary dispute between two private individuals. The
allegations involve the forgery of government records and other
serious offenses. Furthermore, due to the alleged sale
transaction with Akhil Anjana Kalavani Mandal, the common
plot of Harkornagar Society, measuring approximately 628.12
square meters, was also sold by the present applicant. In this
regard, a complaint has been filed, and other victims have
supported the allegations by submitting affidavits. Therefore, the
dispute concerning the property and its sale does not lessen the
burden or gravity of the offense. The applicant, despite having no
rightful interest in the property, has engaged in fraudulent
transactions and manipulated legal proceedings.
6.4 It is further submitted that, on the contrary, the applicant
has taken undue advantage of his legal knowledge and influence
to tamper with and manipulate government records, sold excess
land, and pocketed the money. Now, he denies these allegations
and shifts the blame onto the society members, accusing them of
encroaching on the common plot. Despite purchasing the land
through a registered sale deed, the applicant applied to the City
Survey Office, where the plot measurement recorded in the index
and application was mentioned as 489.87 square meters.
Considering these facts, the complainant has requested that the
present application be dismissed. The applicant has managed to
prolong the litigation for more than ten years. If granted
anticipatory bail, he is likely to tamper with evidence, as he is an
advocate well-versed in revenue proceedings. His legal knowledge
could be misused to adversely impact the prosecution's case.
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Therefore, the present application may be dismissed.
7. While granting bail, the Court has to consider the
involvement of the accused in the alleged offence, the jurisdiction
to grant bail has to be exercised on the basis of the well settled
principles having regard to the facts and circumstances of each
case and the following factors are to be taken into consideration
while considering an appeal for bail: (i) the nature of accusation
and the severity of the punishment and the nature of the
materials relied upon by the prosecution; (ii) reasonable
apprehension of tampering with the witnesses and threat to the
complainant or the witnesses; (iii) reasonable possibility of
securing the presence of the accused at the time of trial or the
likelihood of his abscondence; (iv) character behaviour and
standing of the accused and the circumstances which are
peculiar to the accused; (v) larger interest of the public or the
State and similar other considerations are required to be
considered.
8. Having heard the learned advocate for the respective
parties and perusing the investigation papers, 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) the nature and gravity of the accusation; (ii) the
antecedents of the applicant including the fact as to whether he
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has previously undergone imprisonment on conviction by a
Court in respect of any cognizable offence; (iii) the possibility of
the applicant to flee from justice; and (iv) where the accusation
has been made with the object of injuring or humiliating the
applicant by having him so arrested and after scanning the
documents on record, it appears that the complaint was filed in
2013 at the instance of complainant-respondent No. 2, who was
a member at that time. The applicants purchased land bearing
plot No. 6 of City Survey No. 214/A/6, admeasuring 489.87 sq.
meters, through a registered Sale Deed dated 14.05.1997 in
Harkornagar Society - I. The said Sale Deed specifically states
that the plot size is 489.87 sq. meters, as mentioned in the
schedule to the deed. The vendors of the said Sale Deed also
possessed only 489.87 sq. meters of land in plot No. 6. The
measurement sheet maintained by the office of the District
Inspector of Land Records (DILR) and the City Survey, referred to
as the "Measurement Book," establishes that the size of plot No.
6 is 489.87 sq. meters. Immediately after purchasing the plot in
1997, the applicants submitted an application to the City Survey
Superintendent for the mutation of their names. This application
also mentioned the plot size as 489.87 sq. meters on
15.05.1997. Based on this application, relevant entries were
made in the revenue records, which also reflected the total area
owned by the applicants as 489.87 sq. meters. The applicants
subsequently sold the said plot through three different Sale
Deeds.
8.1 It also transpires that despite this factual position, the
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property records were forged, and the original plot size of 489.87
sq. meters was fraudulently increased to "1489.87" sq. meters by
inserting the digit "1" in the City Survey records. Notably, these
documents are now unavailable and have been lost from the City
Survey office. The applicants are direct beneficiaries of this
alleged forgery. Further, taking advantage of the increased plot
size, the applicants executed a Sale Deed on 29.03.2010 in favor
of one Akhil Anjana Kalavani Mandal, transferring 774.80 sq.
meters of land from plot No. 6. The stipulations in the Sale Deed
state that the transfer was on an "AS IS WHERE IS BASIS." It
further mentions that the "District Collector, Mehsana granted
NA (Non-Agricultural) status to the land bearing Survey No. 73
on 18.01.1986. Thereafter, the sanctioned plan was revised
internally, and new planning resulted in the subdivision of plots.
According to this internal planning, plot No. 19 (old) became plot
No. 6 (new), which has been sold..."
8.2 Even, during the proceedings before the Collector, the City
Survey Superintendent personally appeared before the Collector,
Patan, at the hearing of Appeal No. 6 of 2015. He explicitly
stated that plot No. 6 had always measured 489.87 sq. meters.
This fact was recorded by the Collector, Patan, in his order dated
16.12.2015. Although the said order was later quashed by the
Secretary, it was done solely on the ground that the entry was
for fiscal purposes and that property rights must be determined
by a Civil Court. This order was subsequently affirmed by this
Court, and the writ petition was withdrawn. However, in another
petition, Special Civil Application No. 18753 of 2018, this Court
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specifically held that the Revenue Authorities shall not alter the
mutation entry. In any case, a civil suit has already been filed,
which will determine the rights of the parties and the validity of
the Sale Deed. The allegations in the FIR and the ongoing
investigation pertain to the forgery of records in the City Survey
department, where the plot size was increased from 489.87 sq.
meters to 1489.87 sq. meters.
8.3 Furthermore, the relevant documents are now missing
from the City Survey office. Applicant No. 1 is an advocate
practicing exclusively in Revenue matters and is fully aware of
the entire controversy. He has been involved in these
transactions from the outset. Applicants No. 2 and 3 are also co-
purchasers with Applicant No. 1 and were vendors in the
subsequent Sale Deed. The applicants had previously filed a
quashing petition, Special Criminal Application No. 1914 of
2013, but later withdrew it after detailed submissions were
made, and the interim relief granted earlier was vacated by this
Court. The investigation is still at a nascent stage. As a result,
the common plot of Harkornagar Society II, i.e., the society of the
informant, admeasuring about 628.12 sq. meters, has been sold
fraudulently.
9. From the perusal of the documents on record, it is evident
that the applicants have purchased a plot admeasuring 489.87
square meters and subsequently sold it through three different
sale deeds. Thereafter, further they have also sold 774 square
meters of land to Akhil Anjana Kalavani Mandal without any
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valid title or authority. If we examine the recitals of sale deed
executed by the predecessor-in-title of the present applicant, the
schedule clearly mentions the plot measurement 489.87 square
meters. After the execution of the sale deed, Applicant No.1 also
applied to the City Survey Office, and based on this application,
an index was issued, wherein also the same measurement is
mentioned as 489.87 square meters.
9.1. Thereafter, the applicant executed three different sale
deeds, in which he also sold an excess of 3.44 square meters of
land on different times. According to the complainant, this
excess land belongs to the common plot of Harkornagar Society
and is a part of Harkornagar Society-I and II. The Multiplication
Book maintained by the City Survey Office and the Office of the
City Survey Superintendent clearly records the measurement of
Plot No. 240/A/9 and 226A-35. It is alleged that, in the city
survey records, the earlier measurement of 240/A/6 was 489.87
square meters. This same measurement was also mentioned in
the schedule of the executed sale deed.
9.2. However, in the sale deed, it is stated that in the layout of
Harkornagar Society, the measurement of the plot is mentioned
as 1,366 square yards (1,142.14 square meters). To the east of
this plot, a proposed DP road of 12.2 meters is located, and the
rights to this land belong to the applicant. The sale deed states
that the plot's recorded measurement differs from the actual
measurement on site. Due to this discrepancy, the schedule in
the sale deed reflects the measurement as per city survey
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records. The seller disclaims any responsibility regarding this
measurement or ownership. If any dispute arises in the future,
including issues related to measurement entries, the purchaser
will bear the consequences. In view of the above facts, it is
crystal clear that this may be termed as a defective title for the
purchaser.
10. According to the document, the present applicant holds an
80% share, while Applicant No. 2 and Applicant No. 3 each hold
a 10% share. Notably, at the time of executing the sale deed,
Applicant No. 3 was only nine years old, a minor, while Applicant
No. 1--who holds an major chunk i.e. 80% share--is a revenue-
side practitioner and an advocate. Documents clearly reveals
that the seller executed the sale deed for Revenue Survey No. 73,
Survey No. 240-A-6, City Survey Sheet No. 143, Plot No. 19
(formerly Plot No. 6), measuring 489.87 square meters, with its
boundaries duly specified. Subsequently, the applicant executed
three sale deeds and sold the property in 2002 and 2003, once
again including an excess measurement of 3.47 square meters.
Later, the applicant applied for an index, in which he stated the
measurement as 489.87 square meters. The measurement
records from the DILR confirms that the applicant originally
purchased a property measuring 489.87 square meters.
However, upon cross-checking with the measurement book and
city survey records maintained by DILR, it becomes evident that
the city survey office's property card was forged. A figure "1" was
inserted, altering the measurement to 1,489 square meters. The
applicant has failed to produce or show any documents or
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correspondence or stand to justify this alteration. Furthermore,
there is no record or any evidence of any application or
proceedings initiated by the competent authority for the
correction or modification of the measurement of plot allegedly
referred in the registered sale deed.
10.1 Further, when the complainant came to know about the
above fraud, he has approached to the deputy collector and
thereafter, collector, Patan. Verifying the record of the city survey
officer, both the authorities came to the conclusion that the said
property card is forged and measurement altered in entry
No.3336 came to be cancelled. Being agreed and dissatisfied,
applicant has approached to the SSRT, wherein on the ground of
the delay, the SSRT has been pleased to pass an order on 19 th
April 2018, the said order was assailed by present applicant
including the purchaser Akhil Anjana Kalavani Mandal. The said
revision came to be partly allowed and order dated 16 th
December 2015 in the RTS appeal came to be dismissed but
directed to initiate the fragmentation in proceedings and to verify
about the said partition and based on the said fragmentation as
to whether who is a beneficiary of said land account. The said
order came to be assailed by one member of the society before
this court by way of special civil application No.18753 of 2018,
wherein notice came to be issued and order was passed, revenue
authority shall not alter the mutation entry in the revenue
record qua the property in question and no any reason or
findings are given to overturn the measurement which is verified
by the Dy. Collector and Collector, Patan from the Office and
Record of the City Survey Office. Even complainant has
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approached this court and assailed the order but with the
liberty, the said petition was not pressed with view to file the civil
proceeding qua cancellation of the said deed against the Akhil
Anjana Kalavani Mandal but which cannot be termed the alleged
dispute is in civil nature.
11. It is needless to say that the entry made in the revenue
record is only for the fiscal purpose, is never confers any right
title or the interest in the property but facts remains that after
verifying the record, both the authority has assigned the reason,
the fraud has been committed on the revenue record and original
measurement of the plot is 489.87 square meter and property
card and record is not available with city survey record it is
pertinent to note that government record is missing from the
office. Herein only present applicants are not only accused but
allegations against the office, any employee who is involved in
the such fraud, he is also arraigned and accused if during the
course of investigation his name is revealed or surfaced. The
present applicant is facing the allegations of conspiracy under
section 120B in the forgery. The evidence of the forgery is hardly
would available. From the attending circumstances, court has to
infer the allegations of conspiracy. Herein, only beneficiary of the
said excess measurement is present applicant.
12. The applicant No.1 is also having legally trained mind
and a revenue-side practitioner. In the DILR measurement book,
the measurement is stated as 489.87 square meters. In the sale
deed and the index, the same measurement is recorded as a
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common plot of the society. However, this plot has been sold
without ownership proper authority, forgery has been
committed, and from the government office also records are
missing. Therefore, this is not a simple case of determining the
civil rights of both private parties or resolving a dispute between
Akhil Anjana Kalavani Mandal and the applicant, or between the
members of the society. The allegations go beyond a civil dispute
and involve forgery of government records. For this reason,
custodial interrogation is required. The learned advocate for the
applicant has relied on the judgment of the Hon'ble Apex Court
in the case of Mohammad Ibrahim (supra).
13. In case on hand, the forgery and cheating are not related to
the execution of the registered sale deed. Instead, the forgery
pertains to the manipulation of government records at the record
of city survey office. Specifically, a figure "1" was inserted, which
is altering the measurement to 1489 square meters, benefiting
only the present accused applicants. In this regard, a complaint
has been lodged, and a thorough investigation is required.
14. As the learned advocate for the applicant has argued that
the applicants have participated in the investigation during the
pendency of the quashing petition. However, both the learned
APP and the learned advocate for the complainant have refuted
this claim, stating that the applicants never appeared before the
authorities and only submitted written representations in the
year 2003. They also raised objections regarding the locus standi
of the present applicant. After the complaint was filed and an
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order was passed by the SSRD, a civil suit is filed but in this
suit, the applicant attempted to reframe the issue, claiming it
was a civil dispute and that the society members had
encroached upon the land. To remove the alleged encroachment,
the applicant also filed a counterclaim. But is appears that the
applicant is attempting to build an entirely new case. Herein,
quashing petition is withdrawn. Hence, prima facie offence is
made out.
15. The applicant asserts that this dispute is merely a
boundary dispute between two plots and, therefore, nothing but
a civil matter. However, the learned advocate for the applicant
remained silent when the court posed a specific question as to
whether any proceedings were initiated to rectify or increase the
measurement on revenue record as per the recital of sale deed?
The applicant failed to produce or to show any evidence of such
proceedings. In this regard there is specific allegations against
the applicant that, after selling three plots, a subsequent sale
deed was executed more than eight years later, transferring 774
square meters of land to Akhil Anjana Kalavani Mandal.
Meanwhile, a figure "1" was inserted fraudulently into the
revenue records, and even the original records are missing from
the city survey office.
16. The Collector has examined all these aspects and, after
reviewing the DILR records presented before this court,
confirmed that the measurement recorded in the DILR multiplier
book is 489.87 square meters, which matches the sale deed
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schedule. As per Section 5 of the Transfer of Property Act, no one
can confer a better title than he possess. In this case, the
predecessor-in-title of the present applicant had a clear title to
only 489.79 square meters, which was already sold as per the
registered sale deed. Therefore, thereafter question does not arise
of selling additional land beyond 1,366 square yards, as the sale
deed refers to only 1,366 square yards.
16.1 The NA order of the Collector, Mehsana, dated January 18,
1986, clearly states the land measurement, and the approved
layout is also available. However, the present applicants have
claimed that the plan was revised internally through a mutual
arrangement. This clearly indicates an intention to alter the
measurement. Once the government authority has sanctioned a
layout plan, a private individual has no right to revise it
internally, and such modifications are also having no value in
eye of law.
17. In view of the above, it appears that the applicants have
failed to show how they became the owners of 1489.87 square
meters of land. The applicant No.1 is an advocate who was fully
aware of the entire controversy from the beginning. The
documents clearly establish his involvement in the offense.
Therefore, merely filing a civil suit is not sufficient grounds to
argue that this is a civil dispute when there are specific
allegations of forgery, especially in government records, which
are now missing. At the relevant time, the applicant was an
erstwhile member of Harkornagar Society and had purchased a
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plot, which he subsequently sold. Other witnesses have also
supported the prosecution's case and everyone has right to put
criminal law in motion in case if offence is not in private or
personal in nature.
18. The learned APP appearing for the respondent-State and
the learned advocate for the respondent-complainant submitted
that if the applicant is released on bail, he may use his expertise
as a practicing advocate in revenue matters to influence the
proceedings and made attempt to divert the issue of tampering
and interpolation of government various office records in
collusion with government officials by filing ingenious
labyrinthine proceedings. This Court finds substance in the
arguments presented by the learned advocate for the original
complainant and the learned APP for the State.
19. In aforesaid backdrop, custodial interrogation is necessary.
When serious offences are disclosed and involvement of an
accused prima facie established then, the Court would be loath
to lean in favour of grant of pre-arrest bail in absence of any
other overriding considerations. The alleged offence is in nature
of white collar and socioeconomic offence, this Court is
conscious with the safeguards provided under Section 438 of the
CrPC/482 BNSS and concept of the personal liberty. But herein,
I am of the considered of view that, the present offence is
committed very smartly which is not just an offence against any
individual rather the largest societal interest and public welfare
is involved at and in such circumstances, the delicate balance is
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required to be maintained between two rights one against the
personal liberty and second is societal interest. Arrest is part of
the process of investigation and intended to secure several
purposes. In which the accused may provide information, during
the the discovery of material facts and to relevant information.
20. In such circumstances, when investigation is in
preliminary stage if, anticipatory bail is granted may hamper the
investigation and to collect the material in the more information,
and find out the involvements of another person custodial
interrogation is also necessary, therefore, keeping in mind the
law laid down by the Honourable Supreme Court in the case of
(i) State Rep. by the CBI V/s Anil Sharma reported in 1997 (7)
SCC 187, (ii) Adri Dharan Das V/s State of W.B. reported in
2005 (4) SCC 303 and (iii) P. Chidambaram V/s Directorate of
Enforcement reported in AIR 2019 SC 4198, wherein the Hon'ble
Supreme Court has held held as follows:
"The legislative intent behind the introduction of
Section 438 CrPC is to safeguard the individual's
personal liberty and to protect him from the possibility
of being humiliated and from being subjected to
unnecessary police custody. However, the court must
also keep in view that a criminal offence is not just an
offence against an individual rather the larger societal
interest is at stake. Therefore, a delicate balance is
required to be established between the two rights -
safeguarding the personal liberty of an individual and
the societal interest.
Ordinarily, arrest is a part of procedure of the
investigation to secure not only the presence of the
accused but several other purposes. There may be
circumstances in which the accused may provide
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information leading to discovery of material facts and
relevant information. Grant of anticipatory bail may
hamper the investigation. It may frustrate the
investigating agency in interrogating the accused and
in collecting the useful information and also the
materials which might have been concealed. Success
in such interrogation would elude if the accused knows
that he is protected by the order of the court. Grant of
anticipatory bail, particularly in economic offences
would definitely hamper the effective investigation. Pre-
arrest bail is to strike a balance between the
individual's right to personal freedom and the right of
the investigating agency to interrogate the accused as
to the material so far collected and to collect more
information which may lead to recovery of relevant
information. In this view, it cannot be said that refusal
to grant anticipatory bail would amount to denial of
the rights conferred upon the appellant/applicant
under Article 21 of the Constitution of India.
Consequently, power under Section 438 CrPC being an
extraordinary remedy, has to be exercised sparingly;
more so, in cases of economic offences. Economic
offences stand as a different class as they affect the
economic fabric of the society. The privilege of the
prearrest bail should be granted only in exceptional
cases. The judicial discretion conferred upon the court
has to be properly exercised after application of mind
as to the nature and gravity of the accusation;
possibility of the applicant fleeing 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. Section 438 CrPC is to be invoked only in
exceptional cases where the case alleged is frivolous or
groundless. Anticipatory bail is 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".
Having regard to nature of allegations and stage of
investigations, held investigating agency must be given
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sufficient freedom in process of investigation. Appellant
not entitled to anticipatory bail as the same would
hamper the investigation"
21. 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,
italso 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."
22. 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 reveals.
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23. This Court is of the considered view that if the present
applicant No.1 is equipped with protective order, it would
obviously adversely affect the case of the prosecution and the
qualitative investigation as applicant is having trained legal mind
and he will tamper with evidence and witnesses of
prosecution.25. In the above facts and circumstances and
considering the observations on the legal aspect of the matter,
this Court has absolutely no doubt that if applicant No.1 is
equipped with such an order before he is interrogated by the
Police, it would greatly harm the investigation and would impede
the prospects of unearthing all the ramifications involved in the
conspiracy, as government office records have been forged,
tampered with, and destroyed, the involvement of other
government officials from the City Survey Office cannot be ruled
out.
24. Having considered nature and seriousness of the charge,
prima facie involvement of accused and possibility of tempering
with evidences, it does not appear to be just and proper to
exercise the discretion in favour of applicant No.1-Jain Devdatt
Babulal and accordingly, the application for anticipatory bail is
dismissed qua applicant No.1-Jain Devdatt Babulal. Rule
discharged qua applicant No.1.
24.1 However, with regard to Applicant No. 2, Thakkar
Varshaben Sumanchandra, and Applicant No. 3, Thakkar
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Sukarma Sumanchandra, I have considered the following
aspects
(i). When the transaction took place, applicant No. 3-
Thakkar Sukarma Sumanchandra,was a minor, and
applicant No. 2- Thakkar Varshaben Sumanchandra,
is a woman. Both are only co-sharers with a 10%
share each. Considering these facts, their
applications deserve consideration.
(ii) Nothing is required to be recovered or discovered
from the applicant Nos.2 and 3.
25. In view of the aforesaid aspects and the law laid down by
the Hon'ble Apex Court in the case of Siddharam Satlingappa
Mhetre vs. State of Maharashtra and Ors. reported in (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. reported in (1980) 2 SCC 665
and also the decision in the case of Sushila Aggarwal v. State
(NCT of Delhi) reported in (2020) 5 SCC 1, I am inclined to allow
the present application.
26. In the result, the present application is partly allowed qua
applicant 2- Thakkar Varshaben Sumanchandra and applicant
No.3-Thakkar Sukarma Sumanchandra, by directing that in the
event of arrest / appearance of the applicant No.2 and 3 in
connection with the FIR being C.R.No.97 of 2013 registered with
Patan City B Division Police Station, the applicant shall be
released on bail on furnishing a personal bond of Rs.10,000/-
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(Rupees Ten Thousand Only) each with one surety of like
amount on the following conditions that applicants :
(a) shall cooperate with the investigation and make
himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station
on 24/02/2025 between 11.00 a.m. and 2.00 p.m.
and the IO shall ensure that no unnecessary
harassment or inconvenience is caused to the
applicant;
(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 his residence till the
final disposal of the case till further orders;
(f) 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;
(g) an order of anticipatory bail does not in any manner
limit or restrict the rights or duties of the police or
investigative agency, to investigate into the charges
against the applicant;
(h) It is open to the police or the investigating agency to
move the learned trial Court for a direction under
Section 483(2) to arrest the accused, in the event of
violation of any term, such as absconding, non-
cooperating during investigation, evasion,
intimidation or inducement to witnesses with a view
to influence outcome of the investigation or trial, etc.-
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27. At the trial, the Trial Court shall not be influenced by the
prima facie observations made by this Court while enlarging the
applicant on bail.
29. Rule is made absolute to the aforesaid extent applicant 2-
Thakkar Varshaben Sumanchandra and applicant No.3-Thakkar
Sukarma Sumanchandra. Application is disposed of accordingly.
Direct service is permitted.
(HASMUKH D. SUTHAR,J)
ALI
