Amit Dilipbhai Patel vs State Of Gujarat

Nikhil S. Kariel, J

Heard learned Advocate Mr.Mahendra Vora appearing on behalf of the applicants, learned Additional Public Prosecutor Mr.Dabhi on behalf of the respondent-State and learned Advocate Mr.Jenil Shah for the First Informant.

Rule. Learned APP waives service of rule on behalf of the respondent-State and learned Advocate Mr.Shah waives for the First Informant.

By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant – original accused pray for being released on anticipatory bail in connection with FIR No.11191041221155 of 2022 registered with Shaherkotda Police Station, District Ahmedabad on 2.8.2022 for offences punishable under Sections 452, 427, 294(b), 323, 506(2) and 114 of IPC.

Learned Advocate Mr.Raval for the applicants would submit that the applicants have not committed any offence as alleged in the complaint and they are falsely implicated. Learned Advocate Mr.Raval for the applicants would submit that the nature of allegations are such for which custodial interrogation of the applicants at this stage is not necessary. Besides, the applicants are available during the course of investigation and will not flee from justice. In view of the above, the applicants may be granted anticipatory bail. Learned Advocate Mr.Raval for the applicants, on instructions, states that the applicants are 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 their remand. Learned Advocate would further submit that upon filing of such application by the Investigating Agency, the right of applicants-accused to oppose such application on merits may be kept open.

This application has been vehemently opposed by learned Additional Public Prosecutor Mr. Dabhi appearing on behalf of the respondent-State, who would submit that looking to the nature and gravity of the offence the applicants may not be released on anticipatory bail by this Court.

Learned Advocate Mr.Jenil Shah appearing on behalf of the First Informant, by adopting the submissions of the learned APP, would submit that the allegations levelled against the applicants are very serious in nature and if the applicants are enlarged on pre-arrest bail, that would affect the investigation and, therefore, this Court may not consider the present application for anticipatory bail.

Having heard the learned Advocates for the parties and having perused the investigation papers, following aspects are taken into consideration by this Court:

It appears that while the applicants as well as the persons, who had rented out the property in question to the First Informant are having a dispute;

It also appears that as such the Leave and Licence Agreement in favour of the present First Informant appears to be later than a panchnama drawn of the property in question by the City Mamlatdar, Asarwa, Ahmedabad;

From the panchnama, which is tendered by the learned Advocate Mr.Vora as a paper-book, it appears that two different panchnamas of 21.3.2022 and 4.4.2022 had been drawn of the property in question;

It appears that on the former date the possession of certain persons was found and whereas in the later panchnama, the vacant position was handed over to the present applicant No.1. It also appears that such panchnamas had been drawn in context of an application/complaint under the Land Grabbing Act made by the applicants to the Collector, Ahmedabad. Having regard to such a circumstance, it very clearly appears that vacant possession of the property had been handed over to the present applicants in April, 2022 and whereas the First Informant relied upon a Leave and Licence Agreement dated 6.7.2022 to allege that he was having possession of the property in question, it clearly appears that the said Leave and Licence Agreement and all subsequent aspects flowing from the said transaction may not be genuine;

Having regard to such circumstances, in the considered opinion of this Court, the aspect of frivolity in the prosecution at this stage cannot be ruled out.

Having regard to the circumstances noted above, and considering the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694, this Court is inclined to consider this application.

In the result, the present application is allowed by directing that in the event of applicants herein being arrested pursuant to FIR No.11191041221155 of 2022 registered with Shaherkotda Police Station, District Ahmedabad, the applicants shall be released on anticipatory bail on furnishing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) each with one surety of like amount each, on the following conditions that the applicants:

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

(b) shall remain present at the concerned Police Station on 12.10.2022 between 11:00 a.m. and 2:00 p.m.;

(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 their residence till the final disposal of the case or till further orders;

(f) shall not leave India without the permission of the Court and, if having passport shall surrender the same before the Trial Court within a week;

Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicants to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. The applicants 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 aconsider such a request in accordance with law. It is clarified that the applicants, 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.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicants on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.