Dipikaben Mihirkumar Prakashbhai Panchal & Anr vs State Of Gujarat

J. C. Doshi, J

By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioners have prayed to release them on anticipatory bail in case of their arrest in connection with the FIR registered as C.R.No.11822021240232 of 2024 registered with Navsari Rural Police Station.

Learned advocate for the petitioner submits that the petitioners are innocent. The petitioners have not forged or fabricated any documents. It is submitted that petitioner no.1 is lady. FIR came to be filed against petitioners on expire of earlier husband of petitioner no.1, who happens to be brother of the complainant. Petitioner no.1 is married to petitioner no.2. It is submitted that documents permit to operate locker in the joint name of deceased husband and son of the complainant on papers received from South Africa. Concerned Bank after due verification permitted to open locker and therefore, there is no forging of documents. It is submitted that without prejudice to rights and contentions of the petitioners, the petitioners are ready and willing to deposit Rs.58 lakhs in installments before the learned Trial Court. It is submitted that petitioner no.1 has undertaken the same by way of filing affidavit before this Court. It is submitted that so far as petitioner no.2 is concerned, there is no whisper of allegations against him.

2.1. Apart from above submissions, it is submitted that the petitioner no.1 has child from earlier husband and now she has son from 2nd marriage. It is submitted that the petitioners are ready and willing to co-operate in investigation. It is also submitted that as entire issue pertains to documentary evidence, the petitioners may be granted anticipatory bail.

Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. It is submitted that petitioner no.1 is main culprit and she has forged passport of the complainant and placed before the advocate. It is submitted that Investigating Officer has recorded statement of notary public living in Johannesburg and he has categorically denied it about notarizing the documents and therefore, prima facie case of forging documents is made out and further investigation can be possible only on custodial interrogation of the accused. Therefore, it is submitted to dismiss the petition.

Heard the learned Advocates for the respective parties and perused the papers.

Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to exercise discretion in favour of the petitioners. What appears from the record that, it is dispute between Bhabhi and Nadand whereby brother of the complainant has expired and the petitioner no.1 who is Bhabhi married again to petitioner no.2. It is alleged that amount of Rs.1,16,82,255/- has been siphoned away by the petitioners after tendering forged documents and obtained Fixed Deposits and Kisan Vikas Patra etc. from the locker jointly in the name of first husband of the petitioner no.1 and son of the complainant. Without prejudice to rights and contentions, the petitioners are ready to deposit Rs.58 lakhs. The petitioners have filed undertaking by way of affidavit dated 16.04.2024 before this Court. Para 2 and 3 of the said undertaking reads as under :-

"2. As against the above allegations, we the petitioners being not rank outsiders but petitioner no.1 being the erstwhile sister in law of the complainant as the first husband of the petitioner no.1 namely Shailesh Amratlal Bhana happened to be the brother of the complainant by blood, the locker which was opened by the petitioner No.1 was on account of the same being jointly held with my deceased husband by the son of the complainant. In fact, it is my case that everything in the locker belonged to my husband which was kept in the name of the sister for safe keeping. Therefore, taking into consideration the fact that the petitioner no.1 also had a share in the property of the deceased husband who was the joint locker holder, the petitioners undertake as under.

The petitioners undertake to deposit before the trial court without prejudice 50% of the total amount of alleged misappropriation which is Rs.1,16,82,255/- out of which the petitioners undertake to deposit Rs.58,00,000/- before the Trial Court in the following manner:

A. Rs.20,00,000/- shall be deposited on or before 10th May 2024.

B. Out of the balance of Rs.38,00,000/-, the petitioners undertake to deposit the same in equal bi-monthly installments of Rs.5,42,000/- commencing from the 15th of July, 2024.

C. The petitioners shall not make any default in making good the amount of installments as undertaken."

Prima facie, it appears to be civil dispute. Moreover, FIR is filed after 2 years of alleged incident. Petitioner no.1 is lady. No allegations are levelled against petitioner no.2 which is reflecting on bare reading of FIR.

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) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided.

This Court while exercising discretion in favour of the petitioners has taken into consideration law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitutional Bench in the the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab (1980) 2 SCC 665. This Court has also taken into consideration law laid down in the case of Sushila Agarwal v/s. State (NCT of Delhi [(2020) 5 SCC 1].

In the result, the present petition is allowed by directing that in the event of applicants herein being arrested pursuant to FIR registered as C.R.No.11822021240232 of 2024 registered with Navsari Rural Police Station, the petitioners shall be released on bail on furnishing a personal bond of Rs. 10,000/-(Rupees Ten Thousand only) each with one surety of like amount on the following conditions that the petitioners :

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

(b) shall remain present at concerned Police Station on 29.04.2024 and 30.04.2024 between 10.00 a.m. and 4.00 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 residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week;

If undertaking dated 16.04.2024 given by petitioners before this Court is breached, the anticipatory bail granted to the petitioners shall be automatically cancelled.

If breach of any of the above conditions is committed by the petitioners, the concerned learned Judge will be free to take appropriate action in the matter. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the petitioners on bail. Direct service is permitted.