Gujarat High Court
Babubhai Parshottamdas Patel vs State Of Gujarat on 6 October, 2025
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R/CR.MA/25186/2024 CAV JUDGMENT DATED: 06/10/2025
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Reserved On : 25/09/2025
Pronounced On : 06/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 25186
of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 2127 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
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BABUBHAI PARSHOTTAMDAS PATEL
Versus
STATE OF GUJARAT
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Appearance:
CR. MISC. APP. NO.25186 OF 2024
MR. JAL UNWALLA, LD.SR. ADV. WITH MR MAULIK S SHETH & MS.
RAGINI M. SHETH & MS. HIMA PATEL for the Applicant(s) No. 1
MS. KRUTI M SHAH(2428) for the Respondent(s) No. 1
MR. HARDIK SONI, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
CR. MISC. APP. NO.25186 OF 2024
MR. ANIK S. TIMBALIA for the Applicant(s) No. 1
MS. KRUTI M SHAH(2428) for the Respondent(s) No. 1
MR. HARDIK SONI, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Since the issue involved in both the captioned applications
arises out of the very selfsame FIR, those were heard analogously
and are being disposed of by this common judgment and order.
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2. Rule returnable forthwith. Learned APP Mr. Hardik Soni
waives service of notice of rule for respondent - State of Gujarat
and learned advocate Ms. Kruti Shah, waives service of notice of
rule for and on behalf of the respondent No.2-original
complainant.
3. By way of the present applications under Section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the
applicants have prayed for anticipatory bail in the event of arrest
in connection with the FIR being C.R. No.11191011240306 of
2024 registered with the DCB Police Station, Ahmedabad City, for
the alleged offences as mentioned in the FIR.
4. The gist of the allegations made in the FIR is that since
1955, the Ahmedabad Municipal Corporation (for Short 'AMC')
was the owner of the disputed lands situated at Suez Farm as
mentioned in the FIR, however, later, in the year 1990, pursuant
to the resolution issued by the AMC, 1/3rd portion of the disputed
lands was allotted to the farmers for cultivation purposes, while
the remaining 2/3rd was taken back by the AMC, and for that, an
Agriculture Society (Khedut Mandali) (for short 'Mandali') was
established for managing all the affairs and transactions relating
to the allotted lands of the Suez Farm, wherein the accused No.1-
Babubhai Parshottamdas Patel was appointed as 'Secretary' and
accused No.2-Manishbhai Jayendrabhai Patel was appointed as
'President', and It has been further alleged that, both the accused
persons, being the 'Secretary' and 'President' of the Mandali,
have created a false and fabricated documents of the "Mandali'
as also the bogus affidavits of the farmers on the different stamp
papers, and have also created bogus sale agreements by forging
the signatures as well as thumb impressions of the farmers, and
then transferred the disputed land in their names by presenting
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the said forged and fabricated documents before the AMC
showing it to be genuine, and thereby unlawfully grabbed the
1/3rd of the land which was allotted to the complainant and other
original owners/farmers. With this sort of allegations, the FIR
came to be lodged.
5. Thus, apprehending their arrest pursuant to the registration
of the aforesaid FIR, the applicants preferred anticipatory bail
applications before the trial court, however, the said applications
was not entertained and rejected by the trial court.
6. Being aggrieved, the applicants are here before this Court
with the present applications.
ARGUMENTS IN CRIMINAL MISC. APPLICATION NO.25186
OF 2024
7. Learned senior advocate Mr. Jal Unwalla assisted by learned
advocate Mr. Maulik Sheth appearing for the applicant submits
that the allegations made in the FIR are of such a nature, for
which, custodial interrogation of the applicant at this stage is not
necessary. He further submits that the applicant will keep himself
available during the course of investigation as well as the trial
proceedings and will not flee from justice. Learned senior
advocate Mr. Unwalla submits that the FIR came to be lodged on
26.11.2024 for the incident alleged to have been taken place
during the period between 01.01.1993 and 31.12.2003, and as
such, there is a huge delay of 31 years in registering the FIR
without there being any plausible explanation worth the name
about such a long delay. Learned senior advocate Mr. Unwalla
also submits that the sum an substance of the allegations made
in the FIR is that, the applicant along with the applicant of
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connected application, created false and fabricated documents
by forging the signatures of the complainant and six other
farmers, and by doing so, the applicant got the disputed land
transferred in his name. However, the fact is that the disputed
land, since long, was in possession of the AMC and for the
purpose of cultivation, the farmers of village Vanzar took the said
land on lease from the AMC, and therefore, auction took place
every year for the said land. He submits that during 1985-86, for
the need that stood at the relevant point of time, the AMC
decided to take loan from the World Bank, and for that, the AMC
had to show some assets of its ownership, and at that point of
time, the AMC was possessing 2000 Acre of land, however,
among this 2000 Acre land, some farmers were having
possession on lease. Therefore, a committee was formed by the
Commissioner, AMC, and the said committee, passed a
Resolution No.2904 dated 20.03.1989, whereby it was declared
that 1/3rd of the land at Suez Farm will be given to the lease
holders by the AMC. Therefore, for the above stated purpose, one
Mandali was also established and it was decided by the Mandali
that sale deed should be executed in favour of the present
applicant of the 1/3rd of the land of farmers. It was also decided
that the said Mandali will cooperate with the AMC in carrying out
the process of inspection regarding revenue record of the land.
Hence, whom found to be having the title over the parcel of land,
he will get the amount of compensation, and the amount of
compensation had to be accepted on oath by each individual, and
for that purpose, Possession Receipts, affidavits, and Agreement
of Khedut Mandali was executed.
8. Learned senior advocate Mr. Unwalla submits that as per
the resolution of the AMC, the sale proceedings were initiated in
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the year 1993, and since then, the applicant is having the
ownership and possession of the said land, however, since 1993,
except the present FIR, neither the complainant nor any of the
farmers have filed a single complaint against the present
applicant. He submits that the present applicant is having
undisputed ownership and possession of the said land since 31
years. Moreover, after following all the procedures and
inspections, the Deputy Commissioner of AMC had executed
Lease Deed in favour of the present applicant. Learned senior
advocate Mr. Unwalla further submits that somewhere in the year
1991, one Bhalaji Dhiraji Thakore got executed Banakhat from
the farmers against the amount of consideration as decided in
the Banakhat, and then the said Bhalaji Thakore executed sale
agreement in favour of the present applicant for himself and on
behalf of the other farmers upon receipt of amount of sale
consideration of Rs.41,000/- per Bigha. Learned senior advocate
Mr. Unwalla submits that aforesaid are the true and correct facts,
and the complainant, after a period of 31 years, all of a sudden,
woke up from the slumber, and filed the present FIR, falsely
implicating the present applicant with a mala fide intention to
extort money from him and/or to subject him to mental trauma.
Even, no explanation has been given by the complainant about
such a huge delay in registering the FIR, which raises serious
doubts regarding the authenticity and veracity of the allegations
made in the FIR, and on this ground also, the applicant deserves
to be released on anticipatory bail. Learned senior advocate Mr.
Unwalla also submits that looking to the allegations made in the
FIR, the dispute involved in the present matter seems to be
purely of a civil nature, which has been given a cloak of criminal
offence, and the Hon'ble Supreme Court has repeatedly
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condemned such a practice in multiple judgments by
emphasizing that criminal law should not be used as a tool for
vengeance or to settle civil or commercial disagreements,
requiring an overwhelming element of criminality for such
proceedings to be valid. He further submits that the present
FIR is nothing but an abuse of process of law being filed with
an ulterior motive by the complainant after failing in the
proceedings under the Land Grabbing Act. Moreover, the
silence of the complainant for nearly 31 years is indicative of
the undisputed and uninterrupted possession and ownership of
the applicant, which ultimately substantiate the bona fide
claim of the applicant, and as such, the applicant deserves to
be released on bail. He submits that all transactions were
conducted under the supervision and authority of the AMC, and
therefore, the question of grabbing of land does not arise.
Even no civil suit or any other proceedings were initiated by
any of the farmers or the complainant during the interregnum
period. Further, the entire case of the prosecution rests upon
documentary evidence, and all those documents have already
been collected by the investigating officer, and as such, no
custodial interrogation of the applicant is now required.
9. Learned senior advocate Mr. Unwalla submits that, in
fact, in 2017, one Kamleshbhai Punjabhai Chavda had filed an
application before this Court, seeking direction to register the
FIR against the present applicant, which came to be disposed
of by the then Coordinate Bench of this Court with a specific
direction to the police authority to look into the complaint and
take a decision whether the same discloses commission of any
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cognizable offence or not, and after perusal of the complaint
and inquiry, if any, the police inspector is of the view that the
same discloses commission of a cognizable offence, then, in
such, circumstances, the first information report be registered.
Pursuant to the said order, a detailed inquiry was carried out
by the police, and at the end, reached to the conclusion to
register the first information report. As soon as the applicant
came to know about the same, he immediately approached
this Court by filing quashing application, wherein settlement
had been arrived between the parties, on the basis of which,
the entire proceedings had been quashed. Learned senior
advocate Mr. Unwalla has drawn the attention of this Court
towards those set of documents and submits that in the said
settlement, the legal heirs of the complainant were also made
the party, and they also signed the said documents. He
submits that there are so many persons coming out, claiming
their ownerships over the disputed 1/3rd lands, and now from
those persons, the present FIR has been lodged by the
complainant based upon the same set of facts, wherein the
matter had already been settled with the similarly situated
person, with an intention to extort money from the applicant.
Learned senior advocate Mr. Unwalla further submits that the
allegations made in the FIR as well as the evidences produced
on record do not make out any case against the present
applicant. He submits that none of the land owners had ever
raised any grievance against the action of the applicant at the
relevant point of time, and almost all the original land owners
have been passed away, and therefore, it is practically not
feasible for the investigating officer to carry out the
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investigation in a proper manner in their absence. It is also not
possible for the investigating officer to get the handwriting
expert's opinion in the absence of the original land owners,
signatures of whom, alleged to have been forged. He submits
that in the absence of material to show knowledge of forgery,
dishonest inducement, or collusion, the essential ingredients of
the offences under Sections 420, 463, 467, 468, and 471 IPC
are not attracted. The complainant or his ancestors have not
raised any objections till the filing of he present FIR, and have
remained silent for three decades. Such an extraordinary delay
gravely prejudices the applicant's right to a fair investigation
and defence, particularly as the allegations relate to
administrative acts of the Mandali performed long ago. The
delay undermines the credibility of the prosecution's case. He
also submits that the entire case rests on documentary
evidence already in existence, and as such, custodial
interrogation of the applicant is neither necessary nor
justifiable. Furthermore, he is ready and willing to cooperate
with the investigation and furnish all documents as
required. Moreover, the applicant is a senior citizen, aged
about 78 years, and is unable to withstand the rigors of the
investigation process due to his old age and poor health.
10. In such circumstances, referred to above, learned senior
advocate Mr. Unwalla prays that there being merit in the
present application, the same be allowed and the applicant be
released on anticipatory bail.
ARGUMENTS IN CRIMINAL MISC. APPLICATION NO.2127
OF 2025
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11. Learned advocate Mr.Anik Timbalia appearing for the
applicant submits that his client is not directly or indirectly
connected or associated with the commission of the crime. So
far as the role attributed to the present applicant is concerned,
he being the President of the Mandali, has signed certain
documents which were then produced to the AMC. He further
submits that even if, for the sake of arguments, without
admitting it, the allegations made in the FIR is believed to be
true, then also, the same do not establish any case of forgery
being committed by the present applicant, as to establish
forgery, signatures must be of any other person and not of his
own, and here in the case on hand, it is not the case of the
prosecution that the present applicant has forged anyone's
signature. He submits that the documents containing the
signatures of his client does not have any bearing to the
execution of the sale agreement. He submits that there is a
huge unexplained delay of 31 years from the commencement
of the alleged offence and 21 years from its conclusion, and as
such, the applicant deserves to be released on anticipatory
bail. Moreover, the present applicant is not directly or
indirectly the beneficiary of the alleged transactions. Further,
the entire case of the prosecution rests upon documents
evidences, which have already been collected by the
investigating officer.
12. In such circumstances, referred to above, learned
advocate Mr. Timbalia prays that there being merit in the
present application, the same be allowed and the applicant be
released on anticipatory bail.
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13. On the other hand, both the applications have been
vehemently opposed by learned advocate Ms. Kruti Shah
appearing for the original complainant. She submits that both
the applicants are not so innocent, as is trying to be projected
by their learned counsel. She further submits that the accused
persons, acting in concert and with common intention,
systematically fabricated documents and forged the signatures
of the original land owners, on the basis of which, later
transferred the said lands in the name of the accused No.1,
thereby have caused substantial wrongful loss to the
complainant and other farmers. She further submits that the
background behind the entire controversy is that the
complainant's ancestors along with other owners and
occupiers were holding several agricultural lands. She submits
that the AMC acquired several lands including the lands of the
ancestors of the complainant and other owners, for sewerage
farm and at that relevant point of time, an entry was also
mutated in the revenue record. Learned advocate Ms. Shah
further submits that she does not have any document to show
at his juncture, but she has received information from the
reliable sources that the said acquisition proceedings of the
AMC had been challenged by the original land owners, and the
matter reached upto the Hon'ble Apex Court, wherein in view
of the settlement arrived at, it was resolved that against the
lands acquired from the agriculturists for sewerage farm, 1/3rd
of the total acquired land has to be allotted to the lessee for
which the Khedut Mandali was established, which may decide
the beneficiaries, and accordingly, the possession of the land
was handed over to the AMC by Khedut Mandali in the year
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1990, and as per the said understanding, the lands of
ancestors of the complainant and other owners were to be
given to the AMC through Khedut Mandali against which 1/3rd
lands are to be retained by the ancestors of the complainant
and other owners and/or their forefathers, and though none of
the farmers have ever sold the lands in question to Babubhai
Patel, i.e. the accused No.1 upon inquiry being made, it has
come to their knowledge that the accused Babubhai
Parsottamdas Patel has created several forged and fabricated
documents with the forged signatures of farmers and on the
basis of those documents, had entered into permanent lease
deed with AMC in the year 2011-12 in respect of the said land,
though Babubhai Parsottamdas Patel has nothing to do with
the land in question.
14. Learned advocate Ms. Shah further submits that neither
the ancestors of the complainant nor the other farmers were at
all aware about handing over of 1/3rd land to its owners by the
AMC, however, recently, several persons have come to know
about the illegalities being committed by the accused persons,
and therefore, one of the farmers has obtained information
under the RTI, upon which, they have learnt that a big scam
has been committed by the office bearers of the Khedut
Mandali in connivance with the then officers of the Corporation
and Babubhai Parsottamdas Patel has grabbed the lands of the
farmers and entered into permanent lease deed with the AMC
on the basis of forged and fabricated documents, and it is to
be noted that some of the farmers were even not alive at the
time of execution of the said documents. Learned advocate Ms.
Shah further submits that most of the farmers are illiterate and
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ignorant of law and they were kept under the impression that
their lands were acquired by AMC and were never informed
even by the Khedut Mandali that 1/3rd part of the acquired
lands were returned back to them by AMC, and by the said
scandal, the accused have grabbed the lands of the poor
farmers. She submits that accused No.1-Babubhai
Parsottamdas Patel was the Treasurer of Sewerage Farm
Farmers Committee, who has misused his position by making
forged and fabricated documents to grab the land of the
farmers. Therefore, the complainant along with other persons
had filed Special Criminal Application No.3813 of 2022 before
this Court, seeking direction to the concerned police authority
to register the complaint wherein the Coordinate Bench of this
Court, vide order dated 19.04.2022, directed the concerned
authority to look into the application filed by the complainant
and other individuals and decide the same in accordance with
law. Pursuant to the said order, the complainant and other
petitioners personally visited the office of the concerned
authorities on several times and submitted all necessary
documents showing that the entire record is forged and
fabricated one, however, as there was no action on the part of
the police as well as the AMC, the complainant and other
petitioners again approached this Court by filing Special
Criminal Application No.7214 of 2022, which came to be heard
on number of occasions, and several orders were also passed,
and ultimately, with the great efforts, the present FIR came to
be lodged, and therefore, after the registration of the FIR, the
aforesaid petition came to be withdrawn.
15. Learned advocate Ms. Shah further submits that earlier
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also, one FIR came to be lodged against the present applicants
being C.R. No.I-01 of 2018 before the Narol Police Station,
Ahmedabad City in respect of the very same scandal, wherein
reports of the FSL was obtained by the investigating officer,
which established that forgery was committed by the accused
persons, and therefore, in the said proceedings, the accused
had entered into settlement with the original complainant
therein and ultimately the FIR was quashed on the ground of
settlement. Learned advocate Ms Shah has drawn the
attention of this Court to some documents to show the forgery
being committed by the accused persons. From the said
documents, she shows that one of the farmers, namely, Nathaji
Bhagaji expired on 25.08.1968, however, the documents in his
name including the affidavit, were prepared on 06.04.1993. In
the same manner, the forgery has been committed in the case
of one another farmer, namely, Pujaji Becharji Thakore, who
died on 28.01.1972, however, the possession receipt in his
name was prepared on 06.04.1993. In the same manner,
several other irregularities have also been committed by the
accused persons in respect of other farmers, and to
substantiate her arguments, she has produced the death
certificates of those farmers on record. She further submits
that the present applicants are the beneficiaries of the entire
fraudulent transactions, who have also misused the letter head
of the Khedut Mandali wherein the accused persons have put
their signatures as President and Secretary, and though the
President, namely, Gulabkhan Karimkhan Pathan died on
25.12.2000, in the said document the signatory as the
president is shown as one Babubhai B. Patel though there is no
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such person like Babubhai B. Patel, and as such, it is apparent
on the face of the record that both the persons have
committed forgery. She submits that not only that, after
getting the land transferred in their names, the possession of
the lands in questions had been transferred in the name of the
third party on the basis of the agreement to sell only, and the
said end users are right now enjoying the possession of the
land in question on the basis of agreement to sell.
16. In such circumstances, referred to above, learned
advocate Ms. Shah prays that there being no merit in both the
applications, the same be rejected.
17. Both the applications have also been opposed by learned
APP Mr. Soni. He submits that almost all the arguments have
been canvassed by the learned advocate for the original
complainant, and he is adopting the said arguments, with a
rider that there is one letter purportedly signed by one
Babubhai B. Patel and the accused No.2, declaring the accused
No.1 as the owner of the land in question, however, though an
intensive investigation has been carried out by the
investigating agency, they have not been able to find out any
such person named Babubhai B. Patel. Thus, it appears that
both the accused persons, in connivance with each other, have
forged the documents of the Mandali to become the owner of
the lands in question. Under the circumstances, learned APP
prays that there being no merit in both the applications, the
same be rejected.
18. I have heard the learned counsel appearing for the
respective parties and perused the materials on record.
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19. Before dealing with the rival contentions of the parties, it
would be apt to notice the principles governing grant of bail in
anticipation of arrest. These principles have been laid down by
a Constitution Bench of the Supreme Court in the case of
Gurbaksh Singh Sibbia and ors vs. State of Punjab, (1980) 2
Supreme Court Cases 565. The Court has, while observing that
the question whether to grant bail or not, depends for its
answer upon a variety of circumstances, the cumulative effect
of which must enter into the judicial verdict, held as under:
"In regard to anticipatory bail, if the proposed accusation
appears to stem not from motives of furthering the ends
of justice but from some ulterior motive, the object being
to injure and humiliate the applicant by having him
arrested, a direction for the release of the applicant on
bail in the event of his arrest would generally be made.
On the other hand, if it appears likely, considering the
antecedents of the applicant, that taking advantage of
the order of anticipatory bail he will flee from justice,
such an order would not be made. But the converse of
these propositions is not necessarily true. That is to say,
it cannot be laid down as an inexorable rule that
anticipatory bail cannot be granted unless the proposed
accusation appears to be actuated by mala fides; and,
equally, that anticipatory bail must be granted if there is
no fear that the applicant will abscond. There are several
other considerations, too numerous to enumerate, the
combined effect of which must weigh with the court while
granting or rejecting anticipatory bail. The nature and
seriousness of the proposed charges, the context of the
events likely to lead to the making of the charges, a
reasonable possibility of the applicant's presence not
being secured at the trial, a reasonable apprehension
that witnesses will be tampered with and "the larger
interests of the public or the state" are some of the
considerations which the court has to keep in mind while
deciding an application for anticipatory bail. The
relevance of these considerations was pointed out in The
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State v. Captain Jagjit Singh, which, though, was a case
under the old Section 498 which corresponds to the
present Section 439 of the Code. It is of paramount
consideration to remember that the freedom of the
individual is as necessary for the survival of the society
as it is for the egoistic purposes of the individual. A
person seeking anticipatory bail is still a free man
entitled to the presumption of innocence. He is willing to
submit to restraints on his freedom, by the acceptance of
conditions which the court may think fit to impose, in
consideration of the assurance that if arrested, he shall
be enlarged on bail".
20. Relying upon the aforesaid judgment, the Supreme Court
in the case of Siddharam Satlingappa Mhetre vs State Of
Maharashtra And Ors, (2011) 1 Supreme Court Cases 694 has,
while observing that no inflexible guidelines or straitjacket
formula can be provided for grant or refusal of anticipatory
bail, held that the following factors and parameters can be
taken into consideration while dealing with the anticipatory
bail:
"(I). The nature and gravity of the accusation and the
exact role of the accused must be properly
comprehended before arrest is made;
(ii). 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;
(iii). The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat
similar or the other offences.
(iv). Where the accusations have been made only with
the object of injuring or humiliating the applicant by
arresting him or her.
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(v). Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large number
of people.
(vi). 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 accused is
implicated with the help of sections 34 and 149 of the
Indian Penal Code, the court should consider
with even greater care and caution because over
implication in the cases is a matter of common
knowledge and concern;
(vii). 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 the
free, fair and full investigation and there should be
prevention of harassment, humiliation and unjustified
detention of the accused;
(viii. The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant; and
(ix). Frivolity in prosecution should always be considered
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 is entitled to an order of bail".
21. A Constitution Bench of the Supreme Court in the case of
Sushila Aggarwal and others vs. State (NCT of Delhi) and
another, (2020) 5 SCC 1, after surveying the legal position with
regard to grant of bail in anticipation of arrest, recorded the
following conclusions:
"91.1. Regarding Question 1, this Court holds that the
protection granted to a person under Section 438 CrPC
should not invariably be limited to a fixed period; it
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should enure in favour of the accused without any
restriction on time. Normal conditions under Section
437(3) read with Section 438(2) should be imposed; if
there are specific facts or features in regard to any
offence, it is open for the court to impose any appropriate
condition (including fixed nature of relief, or its being tied
to an event), etc.
91.2. As regards the second question referred to this
Court, it is held that the life or duration of an anticipatory
bail order does not end normally at the time and stage
when the accused is summoned by the court, or when
charges are framed, but can continue till the end of the
trial. Again, if there are any special or peculiar features
necessitating the court to limit the tenure of anticipatory
bail, it is open for it to do so.
92. This Court, in the light of the above discussion in the
two judgments, and in the light of the answers to the
reference, hereby clarifies that the following need to be
kept in mind by courts, dealing with applications under
Section 438 CrPC:
92.1. Consistent with the judgment in Gurbaksh Singh
Sibbia v. State of Punjab when a person complains of
apprehension of arrest and approaches for order, the
application should be based on concrete facts (and not
vague or general allegations) relatable to one or other
specific offence. The application seeking anticipatory bail
should contain bare essential facts relating to the
offence, and why the applicant reasonably apprehends
arrest, as well as his side of the story. These are essential
for the court which should consider his application, to
evaluate the threat or apprehension, its gravity or
seriousness and the appropriateness of any condition
that may have to be imposed. It is not essential that an
application should be moved only after an FIR is filed; it
can be moved earlier, so long as the facts are clear and
there is reasonable basis for apprehending arrest.
92.2. It may be advisable for the court, which is
approached with an application under Section 438,
depending on the seriousness of the threat (of arrest) to
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issue notice to the Public Prosecutor and obtain facts,
even while granting limited interim anticipatory bail.
92.3. Nothing in Section 438 CrPC, compels or obliges
courts to impose conditions limiting relief in terms of
time, or upon filing of FIR, or recording of statement of
any witness, by the police, during investigation or inquiry,
etc. While considering an application (for grant of
anticipatory bail) the court has to consider the nature of
the offence, the role of the person, the likelihood of his
influencing the course of investigation, or tampering with
evidence (including intimidating witnesses), likelihood of
fleeing justice (such as leaving the country), etc. The
courts would be justified -- and ought to impose
conditions spelt out in Section 437(3) CrPC [by virtue of
Section 438(2)]. The need to impose other restrictive
conditions, would have to be judged on a case-by-case
basis, and depending upon the materials produced by the
State or the investigating agency. Such special or other
restrictive conditions may be imposed if the case or cases
warrant, but should not be imposed in a routine manner,
in all cases. Likewise, conditions which limit the grant of
anticipatory bail may be granted, if they are required in
the facts of any case or cases; however, such limiting
conditions may not be invariably imposed.
92.4. Courts ought to be generally guided by
considerations such as the nature and gravity of the
offences, the role attributed to the applicant, and the
facts of the case, while considering whether to grant
anticipatory bail, or refuse it. Whether to grant or not is a
matter of discretion; equally whether and if so, what kind
of special conditions are to be imposed (or not imposed)
are dependent on facts of the case, and subject to the
discretion of the court.
92.5. Anticipatory bail granted can, depending on the
conduct and behaviour of the accused, continue after
filing of the charge-sheet till end of trial.
92.6. An order of anticipatory bail should not be
"blanket" in the sense that it should not enable the
accused to commit further offences and claim relief of
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indefinite protection from arrest. It should be confined to
the offence or incident, for which apprehension of arrest
is sought, in relation to a specific incident. It cannot
operate in respect of a future incident that involves
commission of an offence.
92.7. An order of anticipatory bail does not in any manner
limit or restrict the rights or duties of the police or
investigating agency, to investigate into the charges
against the person who seeks and is granted pre-arrest
bail.
92.8. The observations in Sibbia regarding "limited
custody" or "deemed custody" to facilitate the
requirements of the investigative authority, would be
sufficient for the purpose of fulfilling the provisions of
Section 27, in the event of recovery of an article, or
discovery of a fact, which is relatable to a statement
made during such event (i.e. deemed custody). In such
event, there is no question (or necessity) of asking the
accused to separately surrender and seek regular bail.
Sibbia had observed that : (SCC p. 584, para 19)
"19. ... if and when the occasion arises, it may be
possible for the prosecution to claim the benefit of
Section 27 of the Evidence Act in regard to a discovery of
facts made in pursuance of information supplied by a
person released on bail
by invoking the principle stated by this Court in State of
U.P. v. Deoman Upadhyaya ."
92.9. It is open to the police or the investigating agency
to move the court concerned, which grants anticipatory
bail, for a direction under Section 439(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.
92.10. The court referred to in para 92.9 above is the
court which grants anticipatory bail, in the first instance,
according to prevailing authorities.
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92.11. The correctness of an order granting bail, can be
considered by the appellate or superior court at the
behest of the State or investigating agency, and set aside
on the ground that the court granting it did not consider
material facts or crucial circumstances. (See Prakash
Kadam v. Ramprasad Vishwanath Gupta ; Jai Prakash
Singh v. State of Bihar, State of U.P. v. Amarmani Tripathi
) This does not amount to "cancellation" in terms of
Section 439(2) CrPC.
92.12. The observations in Siddharam Satlingappa
Mhetre v. State of Maharashtra (and other similar
judgments) that no restrictive conditions at all can be
imposed, while granting anticipatory bail are hereby
overruled. Likewise, the decision in Salauddin
Abdulsamad Shaikh v. State of Maharashtra and
subsequent decisions (including K.L. Verma v. State ,
Sunita Devi v. State of Bihar, Adri Dharan Das v. State of
W.B, Nirmal Jeet Kaur v. State of M.P., HDFC Bank Ltd. v.
J.J. Mannan, Satpal
Singh v. State of Punjab and Naresh Kumar Yadav v.
Ravindra Kumar) which lay down such restrictive
conditions, or terms limiting the grant of anticipatory bail,
to a period of time are hereby overruled."
22. Again, the Supreme Court in the case of Pratibha
Manchanda and another vs. State of Haryana and another,
(2023) 8 SCC 181, after referring to the ratio laid down by it in
Siddharam Satlingappa Mhetre (supra) and Sushila Aggarwal
(supra), 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
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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."
23. From the aforesaid analysis of the legal position with
regard to grant or refusal of bail in anticipation of arrest, it is
clear that there are several factors which are required to be
borne in mind while taking call on an application for grant of
anticipatory bail. These factors cannot be exhaustively
enumerated and the cumulative effect of such factors have to
be taken into account by the Court while granting or refusing
anticipatory bail. The general considerations with which the
Court has to be guided while considering the bail application
are the nature and gravity of offence, the role attributed to the
applicant and the peculiar facts of the case on hand. In short,
the Court has to strike a delicate balance between the right to
liberty of an accused and need for a free and fair investigation.
Thus, the attending circumstances of each case are pivotal in
determining the question as to whether or not an applicant-
accused deserves the respite of anticipatory bail.
24. In the light of aforesaid principles, let me now advert to
the facts and circumstances of the present case.
25. According to the case of the prosecution, the applicants,
who were functioning as a President and Secretary of the
Khedut Mandali have committed a large scale fraud with the
innocent and gullible farmers. According to the FIR, the first
informant received information in a reply to the RTI application
filed by him that certain parcels of land allotted to the different
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farmers have been illegally transferred by the present
applicants in their names, in connivance with each other. From
the said reply, it also revealed that the false signature of a
person who died in the year 1968 has been obtained in the
year 1993. It also appears from the papers of the investigation
that the land in question originally belonged to the AMC, and
in the year 1955, the said land was allotted to the various
farmers by the AMC for cultivations purposes, however, in the
year 1990, by a resolution issued by the AMC, 1/3rd portion of
the entire allotted land was decided to be handed over to the
farmers, and the remaining land was taken back by the AMC,
and for the purpose of managing the affairs of the 1/3rd land
allotted to the farmers, a Khedult Mandali was established,
wherein applicant-Babubhai P. Patel was appointed as
Secretary and applicant-Manishbhai Jayendrabhai Patel was
appointed as President. The investigation papers further
reveals that the land bearing Survey No.42, Block No.212,
situated at Fatehwadi admeasuring 4 Bigha 15 Gunthas was
allotted to the father of the complainant, namely, Punjaji
Bacherji Thakore by the AMC for cultivation purposes, and
subsequently, 1/3rd of the said land was decided to be handed
over to the father of the complainant, which comes to 01 Bigha
12 Gunthas. Then, when came to know about the same, the
complainant made an application to the AMC under R.T.I. for
obtaining the information about the said land, upon which, it
was informed that an affidavit in the name of the father of the
complainant was prepared on 05.07.1993 on the Stamp Paper
of Rs.10/- bearing the signature of the father of the
complainant, namely, Punjaji Bahcerji, and one possession
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receipt was also prepared on 06.04.1993 bearing the signature
of his grandfather, who already died on 28.01.1972. Thus,
though the grandfather of the complainant died in the year
1972, a document in his name has been prepared by the
present applicants after 21 years by forging his signature, and
then based upon the same, forged and fabricated documents
were prepared, thereby the land in question was transferred in
the name of accused No.1-Babubhai P. Patel on the letter head
of the Mandali, which has been signed by the accused No.2-
Manishbhai Jayendrabhai Patel as the President. It appears that
in the same manner, the lands of the other farmers have also
been transferred in the name of the accused No.1. It is worth
noting that, the lands are being transferred in the name of
accused No.1 on the basis of agreement to sell, and then by
the accused No.1 to the third party, also on the basis of the
agreement to sell, and it is in the wisdom of one and all that
ownership rights cannot be transferred on the basis of mere
agreement to sell.
26. Both the learned APP as well as counsel for the original
complainant have drawn the attention of this Court to one
letter dated 20.11.2003 of the Khudut Mandali, declaring the
accused No.1-Babubhai P. Patel as the owner of the land in
question. It is apparent on the face of the record that the said
letter has been signed by the accused No.2-Manishbhai
Jayendrabhai Patel and one Babubhai B. Patel. However, it is
very empathetically submitted by both the contesting
advocates that there was no such person named Babubhai B.
Patel in existence as the President of the Mandali, and the
original president, namely, Gulabkhan Karimkhan Pathan
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already died in the year 2000, and thus, it is apparent on the
face of the record that a dummy president was created by the
applicants herein and then his signature was forged by them
on the letter head of the Mandali to grab the land of the
original owners/farmers. It also appears that, even the police
authority has not been able to find out any such person named
Babubhai B. Patel. Thus, prima facie, the elements of forgery
are clearly found out from the documents placed on record. It
appears that even in the earlier complaint filed by another
person with regard to the very same controversy, though was
ultimately settled with the applicants, the report from the FSL
was obtained, wherein it was opined that signatures of the
farmers were being forged. Thus, having regard to the material
collected by the Investigating Agency in support of the
allegations made in the FIR, it cannot be stated that the charge
levelled against the applicants is false or illusory, as has been
claimed by the applicants.
27. The nature of allegations made against the applicants is
serious as they have alleged to have committed a very large
scale fraud by illegally grabbing the lands of the original
farmers, now runs into crores of rupees. The Investigating
Agency has collected sufficient material to support the said
allegation. It is alleged in the FIR that not only the complainant
has been defrauded but there are many other farmers being
defrauded by the present applicants in the same manner, and
as such, this aspect of the matter is also required to be
investigated so as to ascertain the magnitude of the fraud
allegedly committed by the applicants. The offences of this
kind where the key office bearers like President and Secretary
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of the Khedut Mandali being appointed for the purpose of
looking after the affairs of the lands of the innocent farmers,
taking advantage of the trust reposed upon them by the
gullible farmers, proceeds to commit breach of such trust, are
grave in nature and cannot be taken lightly.
28. The power under Section 482 of BNSS is an extraordinary
power which has to be exercised sparingly, more so in case of
offences grave in nature. The Supreme Court in the case of
Srikant Upadhyay v. State of Bihar, (2024) SCC Online SC 282,
has held that the power to grant anticipatory bail is an
extraordinary power. The Court went on to held that though in
many cases, it was held that the bail is said to be a rule, it
cannot, by any stretch of imagination, be said that anticipatory
bail is the rule. It has been observed that it cannot be the rule
and the question of its grant should be left to the cautious and
judicious discretion by the Court depending on the facts and
circumstances of each case. The Court further cautioned that
the grant of protection to the accused in serious cases may
lead to miscarriage of justice and may hamper the
investigation to a great extent as it may sometimes lead to
tampering or distraction of the evidence.
29. In the present case, as already stated, the applicants are
alleged to be involved in a serious case of forgery and fraud
which has led to grabbing of the lands worth crores of rupees.
In fact, the magnitude of fraud is still under investigation and
at this stage, if the applicants are admitted to anticipatory bail,
it is definitely going to impact further investigation of the case
in an adverse manner. The recovery of many important
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documents is yet to be effected and certain crucial
informations are yet to be gathered, and without their arrest
and custodial interrogation, the same is quite impossible.
30. Although there has been a long delay in the initiation of
proceedings, the gravity of the allegations, the alleged abuse
of official position, and the prima facie findings of the trial
court that custodial interrogation is necessary, cannot be
diluted merely on the ground of delay. Even in a case based
largely on documentary evidence, custodial interrogation may
be essential to trace the chain of transactions, ascertain
complicity, and prevent further suppression or tampering of
records. In these circumstances, I see no reason to interfere
with the order passed by the trial court.
31. For the foregoing reasons, both the applications fail and
are hereby rejected. However, it is made clear that the
observations made by this Court herein above at this stage
while deciding the anticipatory bail applications, would not
come in the way of the applicants at the time as and when if
ultimately the trial court is proceeded with the trial, and at the
stage of consideration of regular bail application, if preferred
by the applicants. Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
