Divyang Dashrathbhai Patel vs State Of Gujarat

Hasmukh D. Suthar, J

Rule returnable forthwith. The learned APP waives service of notice of rule for and on behalf of the respondent-State.

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with C.R.No.11191006230081 of 2023 registered with Bodakdev Police Station, Ahmedabad City for the offences punishable under Sections 406, 420, 114 and 506(1) of the Indian Penal Code.

Heard learned senior counsel Mr.Asim Pandya, assisted by the learned advocate Mr.Vasavada, on behalf of the applicant, learned advocate Mr.Vimal A. Purohit, appearing with the learned advocate Mr.Mrugesh A. Barot, for the original complainant and learned Additional Public Prosecutor Mr.J.K. Shah, for the respondent – State.

Brief facts leading to filing of the present application are as under : -

4.1 The applicant before going to USA in the year 1993, used to stay in joint family. Applicant is also having US passport and he is settled with his family in USA since then. It is stated that his family properties are in Anmedabad and since his parents and elders have been residing at Anmedabad, he was never managing any property at Anmedabad. Applicant is settled down in USA, he was not aware at all about any transactions being executed by his parents or his brother or his uncle on his behalf as his name is mentioned in the revenue record. The applicant was not at all about any Banachithhi / MOU as alleged in FIR by the first informant. As per the case of prosecution, the first informant had executed MOU on 20.08.2014 with family members of the applicant. There is no time limit mentioned in the said MOU. Since the MOU was pertaining to the joint property of family members, the name of the applicant was mentioned MOU / Banachithhi but it was never signed by the applicant. As alleged, the name of Applicant was mentioned in banachithhi only because his name was in Revenue Record. However, upon perusing the said MOU, there was no signature of present Applicant. It is submitted that as per the said MOU / Banachitthi no amount was ever paid to the present applicant herein. Even role of the applicant as alleged in FIR by the complainant that the applicant and Samir Patel went to his office in inebriated conditions and demanded more money. However, nowhere in the FIR the name of the applicant is mentioned with regard to any promise given to him or any money taken from him. Applicant states that the applicant has been staying in USA since 1993 and every regular interval of 1 to 2 years or on any auspicious occasion, the applicant used to visit his parents. However, the applicant used to visit India for very short duration and returned immediately so as to attend his job. Though he is falsely enrolled in the alleged offence.

4.2 On bare perusal of FIR, it is found that the allegations are very Stale, and it is an arm-twisting activity on part of the first informant and to abuse the process of law the civil dispute is converted into Criminal one. Applicant states that the applicant came to India as health of his father was nor remaining in good condition. It is submitted that the first informant came to know about arrival of the Present applicant in India, the defacto complainant lodged an FIR against all persons who were not party to said Banachithhi. It is stated that the FIR is registered on 20.04.2023 and only applicant and his father were arrested on 21.04.2023 at 7:00 pm.

4.3 Thereafter, the applicant preferred an application for bail before the learned Sessions Court, At Ahmedabad vide Criminal Misc. Application No. 1522 of 2023 on 26.04.2023. However, the same was rejected by the learned City Sessions Court, Ahmedabad on 02.05.2023.

Learned senior counsel Mr.Pandya, appearing for the applicant has submitted that the applicant is innocent and he has not committed any alleged offence. Applicant was not at all party to any Banachitthi and he was not aware about any transactions or any documents as alleged in the FIR and everything is done in the absence of the applicant. It is submitted that the so called dispute pertains to the year 2014 and the FIR came to be lodged in the year 2023 i.e. after delay of 9 years. The applicant is a resident of USA and with a view to harass and settle the civil dispute, the colour of criminal litigation is given. No allegation against the present applicant being made, which reveals the involvement of the present applicant. The present applicant is not aware about the alleged transactions of any sale of agreement. The impugned FIR was lodged with a view to harass the present applicant. Even the learned Sessions Judge ought to have considered the nature of offence and enlarged him on the bail considering the facts of the case and on the ground of parity, though the co-accused has released on bail. The learned Sessions Judge has committed error in dismissing the application filed by the present applicant. Even the civil litigation is pending before the Civil Court, which has been ignored by the learned Court. The applicant is a law abiding citizen and he may be released on regular bail by imposing suitable conditions. There is no possibility of tempering with the evidence and flee away from the justice. No custodial interrogation is required. He has further submitted that the applicant is having deep root in the society..

Per contra, the learned APP respondent-State has vehemently appearing on behalf of the opposed the grant of regular bail looking to the nature and gravity of the offence, prima facie, involvement of the applicant in the offence and the applicant is a headstrong personality and having criminal antecedent, he has requested to dismissed the present application. Further, it is submitted that merely the co-accused enlarged on bail is not a ground to allow the present application. Considering the old age of the applicant and he has played mischief and committed breach of trust and made cheating with the complainant and he has not returned the money and siphoned the amount. Hence, it is submitted that this application may be dismissed since the investigation is in progress.

I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. 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 application 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.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40.

Going though the compliant, it appears that the first informant has executed a MoU on 20.08.2014 with the family members of the accused. There was no time limit on MoU. The said MoU was in nature of sale of agreement and it was not signed by the present applicant. Even the present applicant is not party of the said document. The allegation against the present applicant in the complaint is only that the present applicant along with one Samir Patel went to his office in inebriated conditions and demanded more money. However, nowhere in the FIR the name of the applicant is mentioned with regard to any promise given to him or any money taken from him. The applicant has been staying in USA since 1993, and he used to visit India for very short duration. Further, it appears that it is a civil dispute qua the subject matter is pending in the Court before the Ahmedabad (Rural) Court being Special Civil Suit No.507 of 2022, even considering the fact and averments made in the complaint, it appears that the present dispute is of civil nature even, the affidavit filed by the original complainant before this Court, wherein, it is stated that the applicant could not execute the sale deed in favour of the complainant. The matter is amicably settled between the parties. Even if we keep aside the aforesaid fact of settlement between the parties, even though, the present dispute between the parties is of a civil nature, though the civil litigation is filed subsequently, the same is given a colour of criminal proceedings which is nothing but an arm twisting exercise on the part of the complainant. Further nothing is recovered and discovered from the applicant, hence, the present application deserves to be allowed. The innocence of the accused is cardinal principle of ciriminal jurispurdence, and “Bail is Rule and jail is an Exception” as substantial part of the investigation is over and nothing is required to recover or discover from the accused no purpose would be served to keep the applicants behind the bar, which is nothing but amounts to pre-trial conviction, considering the concept of personal liberty and the facts and circumstances of the case and considering the nature of the allegations made against the applicants in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicants on regular bail.

In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with C.R.No.11191006230081 of 2023 registered with Bodakdev Police Station, Ahmedabad City, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner prejudice to the interest of the prosecution and temper with evidence or witnesses;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of till filing of charge sheet between 11:00 a.m. and 2:00 p.m.

[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of concern Court;

The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.

Bail bond to be executed before the lower Court having jurisdiction to try the case. 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 observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent.

Direct service is permitted.