1. The instant application is filed under Section 438 of the Code of Criminal Procedure seeking anticipatory bail in connection with first information report registered at CR No. I-71 of 2008 registered with Dhari Police Station, Dist. Amreli, for the offences punishable under Sections 420, 465, 467, 468 of the Indian Penal Code.
2. Ms.
Shah, Learned advocate for the applicant, at the outset, submitted that the grand-father of the complainant had executed an agreement to sell the disputed land in favour of the applicant accused in the year 1993. Subsequently, the grand father executed a document of power of attorney in favour of one Arjanbhai Keshavbhai and Arjanbhai Keshavbhai, in capacity as power of attorney holder of grand father of the complainant, executed a registered sale-deed in favour of the applicant accused in the year 2009. It is further submitted that prior to the year 2009, it was the applicant accused, who had filed civil suit for specific performance of the agreement for sale against the grand father of the complainant and the complainant being grand son of the said Jetabhai, lodged the FIR on 7/8/2008 complaining the offence allegedly committed in the year 1993.
Ms.
Shah submitted that the applicant had filed a quashing petition in this Court being Criminal Misc. Application No. 14832/2008 and vide judgment and order dated 21/11/2011 the same came to be disposed of as withdrawn with specific observations that whatever evidence would be collected by the IO from anybody inclusive of the applicant accused, the IO was bound to consider the same in accordance with law and on its own merits. My attention was drawn to order dated 7/3/2012 passed in this matter itself wherein this Court directed the applicant to handover all the relevant documents which are in his custody to the IO and pursuant to that direction, whatever documents were in his custody, were handed over to the IO. It is submitted that the original agreement for sale is not in custody of the applicant and, therefore, the same was not handed over. It is, therefore, submitted that the application may be allowed.
3. Ms.
Raval, Ld. Advocate for the original complainant vehemently opposed this application and submitted that not only in the instant matter the applicant concocted false agreement for sale, but even false and forged power of attorney came to be concocted. She drew my attention to the xerox copy of the power of attorney document and submitted that there are major irregularities in the document. It is, therefore, submitted that the application may be dismissed.
4. Mr.
Nanavati, Learned APP for the respondent - State submitted that in the instant matter the IO has recorded the statement of the owner of the land being the grand father of the complainant and at this juncture, about the power of attorney document, nothing is stated by the grand father. It is further submitted that the statement of Arjanbhai being power of attorney holder has been recorded.
5. Having considered the submissions advanced on behalf of the parties, so also considering the facts and circumstances of the case and more particularly at this juncture, considering the statement of grand father of the complainant and the power of attorney holder and further the fact that the applicant, pursuant to the directions issued by this Court in the order dated 7/3/2012, acted upon the said direction, this Court is of the opinion that the application deserves to be granted.
6. This Court has also taken into consideration the law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. Reported in [2011]1 SCC 694, wherein the Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Reported in [1980]2 SCC 565.
7. Learned counsel for the parties do not press for further reasoned order.
8. In the result, this application is allowed by directing that in the event of the applicant herein being arrested pursuant to FIR being CR No. I-71 of 2008 registered with Dhari Police Station, Dist. Amreli, the applicant shall be released on bail on furnishing a bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of like amount on following conditions :-
[a] shall cooperate with the investigation and make himself available for interrogation whenever required.
[b] shall remain present at concerned Police Station on 28/06/2012 between 11:00 am to 2:00 pm:
[c] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any witness so as to dissuade them from disclosing such facts to the Court or to any Police Officer;
[d] shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders;
[e] will not leave India without the permission of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately [f] It would be open to the Investigating Officer to file an application for remand, if he considers it just and proper and the concerned Magistrate would decide it on merits.
[g] 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 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.
8. For modification and/or deletion of any of the conditions herein above, the applicant/s will be at liberty to approach the concerned Court and such Court shall decide the application for modification and/or deletion of any of the conditions of this order in accordance with law.
9. 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 made absolute to the aforesaid extent. Direct service is permitted.
[J.C.
UPADHYAYA, J.] * Pansala.
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