Allowed

Pravinbhai Manjibhai Ghoghari v. State of Gujarat

Gujarat HC19 Feb 2019CR.MA/399/2019

Case brief

AI extract

What is this about?

In this anticipatory bail petition under Section 438 CrPC regarding offenses under the IPC, the High Court granted bail to the applicant, an MLA, rejecting the prosecution's argument regarding investigation delays and parity with a co-accused. The court noted the applicant's cooperation with police and reliance on documentary evidence.

What did the court decide?

The applicant was ordered to be released on bail if arrested, subject to a personal bond of Rs.10,000 with one surety and specific conditions including availability for interrogation and no leave to o

Pravinbhai Manjibhai Ghoghari Vs State of Gujarat — Anticipatory Bail | Gujarat HC (2019)

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R/CR.MA/399/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL MISC.APPLICATION NO. 399 of 2019

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PRAVINBHAI MANJIBHAI GHOGHARI

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Versus

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STATE OF GUJARAT

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Appearance:

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MR IH SYED with MR PRAVIN GONDALIYA(1974) for the
PETITIONER(s) No. 1

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MS SHRUTI PATHAK APP(2) for the RESPONDENT(s) No. 1
MR RR MARSHAL, Sr. Adv. with MR DAIFRAZ HAVEWALLA for
Original Complainant.

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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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Date : 19/02/2019

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ORAL ORDER

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By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for anticipatory bail in connection with the FIR being C.R. No. I– 88/2017 registered with Limbayat Police Station, Surat City for the offenses punishable under Sections 406, 420, 467, 468, 471, 120(B), 114 and 34 of the Indian Penal Code.

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2.Heard learned advocate, Mr. I.H. Syed assisted by
learned advocate, Mr. Pravin Gondaliya for the
applicant, learned APP Ms. Shruti Pathak for the
respondent – State and learned Senior Counsel, Mr.
R.R. Marshal assisted by learned advocate, Mr.
Daifraz Havewalla for the Original Complainant.

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3. Learned advocate for the applicant has referred to the allegations made against the applicant in the FIR. Thereafter, he has referred to the order

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R/CR.MA/399/2019 ORDER

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dated 04.12.2018 passed by this Court in Criminal
Misc. Application No.20342/2018 in case of co-
accused. Learned advocate has referred to the
observations made by this Court while releasing
the said accused on bail and, thereafter, he has
referred to the order dated 04.12.2018 passed in
case of the original accused no.1 in Criminal
Misc. Application No.20751/2018, who has been
released on anticipatory bail. It is contended
that both the aforesaid orders were challenged by
the original complainant before the Hon’ble
Supreme Court, however, the Hon’ble Supreme Court
has not interfered with the said orders passed by
this Court.

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Learned advocate, Mr. Syed thereafter submitted that prior to registration of the FIR, the applicant was called for giving his statement by the concerned Police authority and twice the applicant has appeared before the said authority and has given his statement. It is further submitted that even after registration of FIR, the applicant appeared before the local police twice and his statement is recorded and, thereafter, he also appeared before the present IO of CID Crime when this Court has granted protection in the present application by an order dated 17.01.2019. Learned advocate has placed on record a notice given by the IO under Section 160 as well as under Section 91 of the Criminal Procedure Code, 1973 and submitted that in pursuance to the said notices, the applicant has cooperated with the investigating agency. It is also contended that

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Page 2 of 11

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R/CR.MA/399/2019 ORDER

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till date, no development permission has been
challenged nor the order of amalgamation has been
challenged and even there is no revenue
proceedings initiated by the complainant. He has
further submitted that the case of the prosecution
depends on documentary evidence and, therefore,
his custodial interrogation is not required
looking to the nature of allegations. He further
submits that the applicant will keep himself
available during the course of investigation,
trial also and will not flee from justice.

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5.Learned advocate for the applicant on instructions
states that the applicant is ready and willing to
abide by all the conditions including imposition
of conditions with regard to powers of
Investigating Agency to file an application before
the competent Court for his remand. He further
submit that upon filing of such application by the
Investigating Agency, the right of applicant
accused to oppose such application on merits may
be kept open. Learned advocate, therefore,
submitted that considering the above facts, the
applicant may be granted anticipatory bail.

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6.On the other hand, learned advocate for the
original complainant has submitted that the
present applicant is MLA and, therefore, the
concerned Police authority has initially not
registered the FIR and even after registration of
the FIR, proper investigation was not carried out
by the local police and, therefore, the petition
was filed before this Court for transfer of
investigation and this Court has transferred the

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Page 3 of 11

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R/CR.MA/399/2019 ORDER

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investigation to CID Crime and because of the fact
that the applicant is MLA, immediate steps were
not taken against him.

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7.Learned advocate thereafter referred to the copy
of power of attorney dated 25.07.2005 produced at
Page Nos.9 and 16 of the compilation. It is
submitted that signature of the complainant is
forged in the said document. It is thereafter
contended that on the basis of the said power of
attorney, the applicant has executed sale deed on
15.10.2008 in favour of ten purchasers, out of
which, one of the purchasers is the father of the
applicant. After referring to the averments made
in the sale deed, it is contended that the land
admeasuring 15,579 Sq.Mts is sold at a price of
Rs.8,50,000/- only. It is contended that the
complainant has not received any amount from the
said transaction. It is, therefore, alleged that
on the basis of the forged power of attorney, the
applicant has sold the land in question in favour
of the concerned purchaser.

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8.It is thereafter contended that the present
applicant has refused to produce both the
aforesaid power of attorney before the IO when he
was called. At this stage, it is submitted that
notice issued under Section 135D of the Bombay
Land Revenue Code was also not served to the
complainant.

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9. Learned advocate thereafter contended that the coaccused, Champakbhai Laad was released on regular bail after his arrest, which was made in September, 2018 and, therefore, the case of the

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R/CR.MA/399/2019 ORDER

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present applicant is different from the case of
the said co-accused. It is further submitted that
after the original accused no.1, Shantilal
Madanlal Shah was released on anticipatory bail by
this Court and after the SLP was dismissed by the
Hon’ble Supreme Court filed by the complainant,
the said co-accused has not cooperated with the IO
and, therefore, the complainant has filed an
application for cancellation of anticipatory bail
granted to the said accused before this Court.
Learned advocate also referred to the order dated
07.02.2019 passed by this Court in Criminal Misc.
Application No.1/2018 in Special Criminal
Application No.8662/2017, wherein this Court has
observed in Para No.3 that according to the IO,
the said co-accused, Shantilal Shah has not
produced certain original documents and,
therefore, notice under Section 91 of the Criminal
Procedure Code, 1973 is issued to him for
production of such documents. It is, therefore,
contended that when the proceedings for
cancellation of anticipatory bail is pending
before this Court, the present applicant cannot
claim parity.

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10.Learned advocate thereafter referred to the order
dated 24.04.2017 passed by this Court in Criminal
Misc. Application No.10111/2017, by which, the
present applicant had withdrawn the application
filed under Section 482 of the Criminal Procedure
Code, 1973 for quashing of the FIR qua him.
Learned advocate thereafter refereed to relevant
averments made in the affidavit-in-reply, more

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Page 5 of 11

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R/CR.MA/399/2019 ORDER

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particularly, Para No.10 of the said reply and
submitted that out of total land, which was
amalgamated i.e. 28,609 Sq.Mtrs., only 5231
Sq.Mtrs. is open parcel of land and inspite of
that, the applicant has executed sale deed for the
land admeasuring approximately 18,000 Sq.Mtrs.

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11.In view of the aforesaid submissions, it is
contended by learned advocate that the custodial
interrogation of the applicant is required and,
therefore, this Court may not entertain this
application.

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12.Learned APP Ms. Pathak has supported the
submissions canvassed by learned advocate for the
original complainant. It is further contended that
when the Bank account of the complainant is
verified by the IO, it is revealed that the
complainant has not received any amount by way of
cheque or by way of cash, which was deposited in
the account of the complainant. Thus the
complainant has not received any amount out of the
sale transaction in question. It is further
submitted that the applicant has not produced the
copy of the power of attorney when he was called
by the IO and, therefore, custodial interrogation
of the applicant is required. She, therefore,
urged that this Court may not entertain this
application.

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13.Having heard learned advocates for the parties and
having gone through the material produced on
record including the investigation papers, it is
revealed that the original accused no.1 is
released on anticipatory bail vide order dated

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Page 6 of 11

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R/CR.MA/399/2019 ORDER

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04.12.2018 in Criminal Misc. Application
No.20751/2018. While granting anticipatory bail to
the said co-accused, this Court has observed in
Para No.7(vii) as under,

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“VII) An attention is drawn of this Court to the Google maps of the relevant period to suggest that even in 2010, there was complete existence of residential societies. The revenue record indicates the sub-plotting and ownership of various individuals in whose favour the sale deed is executed. The documents are also produced to suggest that several residential premises were in existence and occupied by various people in whose name electric connections were running and their names are also reflected in the voters card.”

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14. This Court has also considered the case of the another co-accused viz., Champakbhai Laad. The said co-accused has released on regular bail by an order dated 04.12.2018 passed in Criminal Misc. Application No.20342/2018. While releasing the said co-accused on regular bail, this Court has observed in Para No.6(iii) to 6(viii) as under,

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“III) The dispute pertains to piece of land with survey Nos.138, 139 and 140 of village Gadodara, Surat. Apparently survey Nos.138 and 140 belong to family of accused Nos.3 to 14, whereas survey No.139 belong to family of complainant. The family names of both the families are identical

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IV)From the FIR itself, the offence is
narrated to have taken placed between
19.10.2001 to May-June, 2016, whereas the
FIR is registered only in April, 2017. It
appears that the accused No.1 is the
developer on the survey Nos, 138, 139 and
140 and accused No.2 was the purchaser of

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Page 7 of 11

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R/CR.MA/399/2019 ORDER

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the plot of land, whereas accused Nos.3 to
14 are the family members of the original
land owner of survey Nos.138 and 140.

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V) The Court has perused the documents produced on record to find that insofar a the survey Nos.138 and 140 are concerned, the applicant was then has authority to deal with the said survey number as the said land was an ancestral property.

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VI) The Court has also observed that from the documents pertaining to development of the land, construction existed since 1990 in the form of residential societies.

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VII) The complainant was barely few hundred meters away from the land, where the development has taken place for all these years and has still chosen to remain mute spectator and belatedly in the year 2017, when the agricultural lands were put to use for residential purpose and where plotting was done for putting up residential societies, in such circumstance, the case of the applicant deserves consideration.

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VII) The Court has also perused the permission for construction originally issued by the Gram Panchayat which also shows that construction has come into existence in the year 1990 onwards.”

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15. It is not in dispute that both the aforesaid orders were challenged by the original complainant by filing SLP before the Hon’ble Supreme Court and the Hon’ble Supreme Court has not entertained both SLPs.

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16. It is required to be noted that though an application for cancellation of anticipatory bail is filed qua the accused, Shantilal Shah, till date this Court has not issued the notice.

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R/CR.MA/399/2019 ORDER

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17.The contention of learned advocate for the
complainant is that because of the fact that the
applicant is MLA of a party in power, appropriate
investigation is not carried out by the
investigating agency. However, it is required to
be noted that the applicant is elected as MLA
after registration of the FIR and upon making
inquiry from learned APP, learned APP has informed
this Court after taking instruction from the IO,
who is present in the Court that the applicant has
given his statement twice before the concerned
local Police after registration of the FIR and
even after the investigation was transferred to
CID Crime, the applicant appeared twice under the
protection of this Court. Thus from this fact, it
is clear that the applicant has responded to the
notices issued under Sections 91 and 160 of the
Criminal Procedure Code, 1973 issued by the IO.
Further, there is delay in registering the FIR and
the case of the prosecution depends upon the
documentary evidence and it is always open for the
IO to ask for the remand of the applicant if
further information is required. Therefore
considering the above facts, I am inclined to
exercise the discretion in favour of the applicant
by releasing him on anticipatory bail.

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This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694 , wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the

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R/CR.MA/399/2019 ORDER

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case of Shri Gurubaksh Singh Sibbia & Ors. Vs.
State of Punjab, reported at (1980) 2 SCC 665.

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In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No. I–88/2017 registered with Limbayat Police Station, Surat City on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions:

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(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

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(b) shall remain present at concerned Police Station on 26.02.2019 between 11.00 a.m. and 2.00 p.m.;

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(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;

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(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;

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(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;

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(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; and

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(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned

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R/CR.MA/399/2019 ORDER

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Magistrate would decide it on merits;

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Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the

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applicant, even if, remanded to the police
custody, upon completion of such period of police
remand, shall be set free immediately, subject to
other conditions of this anticipatory bail order.

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21. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

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22. Rule is made absolute to the aforesaid extent. Direct service is permitted.

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(VIPUL M. PANCHOLI, J.)

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Gautam

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Pravinbhai Manjibhai Ghoghari v. State of Gujarat

Case brief

What is this about?

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Pravinbhai Manjibhai Ghoghari v. State of Gujarat

Case brief

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