Rule.
Learned APP Miss Shah waives service of notice of Rule for the respondent State.
2. By this application under section 439 of the Code of Criminal Procedure, 1973 (for short "the Code"), the applicant has sought bail in connection with the offence registered as I - C.R. No.60 of 2012 before Umara Police Station, Surat for the offence under sections 420, 465, 467, 468, 471, 474 and 120-B of the IPC.
3. One Pravinchandra Rangildas Kapasiyawala gave application before Umara Police Station, Surat against 56 persons alleging that he is the trustee of Shree Nageshwar Parshwanath Jain Tirth Dham Trust, Magdalla and opponent Nos.7 to 44 with the help of opponent Nos.1 to 6, with a view to grab property of the trust bearing survey No.12 paiki 123 and 107/4paiki/1A/2B/3C and new survey No.89/44, 89/47, 89/48 and 89/34, forged power of attorney and on the basis of such forged power of attorney, opponent No.2 forged 35 documents and thereby, committed the offence as mentioned herein above.
4. On the basis of the application, after inquiry, FIR came to be lodged on 13.2.2012 at Umara Police Station, Surat and it was registered as I - C.R. No.60 of 2012 and investigation was started. During the course of investigation, statements of the witnesses were recorded, Panchnamas were drawn and the applicant was arrested on 13.2.2012. Since then, the applicant is in custody. Therefore, the present application has been filed to enlarge him on bail.
5. The applicant earlier filed Criminal Misc. Application No.710 of 2012 for bail in the Court of learned Sessions Judge, Surat, but the said application for bail came to be rejected by the trial Court. Therefore, the applicant approached this Court by filing Criminal Misc. Application No.5396 of 2012, but said application came to be withdrawn with a view to move the trial Court for regular bail application as charge sheet was filed. Thereafter, the applicant filed Criminal Misc. Application No.1386 of 2012 for regular bail in the trial Court. But the said application came to be dismissed. Hence, the present application has been filed by the applicant to enlarge him on bail.
6. I have heard learned Senior Advocate Mr. Lakhani with learned advocate Mr. Gondaliya for the applicant, learned APP Miss Shah for the State and learned advocate Mr. Bhadrish S. Raju for the complainant appearing with prosecution.
7. Learned Senior Advocate Mr. Lakhani submitted that the applicant is practicing advocate at Baroda and his alleged role is drafting of two power of attorneys. He also submitted that the investigating agency has not collected any evidence to indicate that the applicant was a party to the criminal conspiracy and pursuant to that conspiracy, drafted the power of attorneys. He further submitted that the statement of Valjibhai and Shambhubhai also do not indicate that the applicant was member of the criminal conspiracy allegedly hatched by the other accused. He further submitted that the applicant is a practicing advocate since last about 25 years and has no criminal antecedents and the entire case is based on documentary evidence, which has been collected by the investigating agency and the alleged offence is committed at Surat and the applicant is practicing at Baroda. Therefore, there is no question of tampering with the evidence. He also submitted that the applicant would be available at the time of trial and therefore, he is required to be released on bail by imposing conditions.
8. Learned APP Miss Shah submitted that the applicant was one of the conspirators and was instrumental in drafting the forged documents. She also submitted that the applicant very well knew that the power of attorney was forged and the person, who executed the power of attorney, was not the person in whose name it was prepared. She also submitted that the applicant had identified the executant of the power of attorney and the applicant received huge amount in the transaction of forging the documents and looking to the gravity of offence, he should not be released on bail. She also submitted that the applicant is an advocate and therefore, he would try to tamper with the evidence and therefore, the bail application is required to be dismissed.
9. Learned advocate Mr. Bhadrish S. Raju appearing with the prosecution supported the submissions made by learned APP and further submitted that considering the nature of accusation and seriousness of offence, the application is required to be dismissed.
10. It appears that the applicant, during the course of investigation, filed application to release him on bail. However, the said application came to be rejected by the trial Court and therefore, the applicant approached this Court also, but the said application was withdrawn as during the pendency of bail application before this Court, charge sheet was filed. The said application was withdrawn with a view to approach the trial Court. Thereafter, the applicant preferred bail application before the trial Court on the changed circumstance that charge sheet is already filed. The trial Court, after considering the merit of the case, dismissed the application and therefore, the applicant has approached this Court.
11. It appears from the documents annexed with the charge sheet that except the statements of witnesses Shambhubhai Bhimjibhai Kalathia and Valjibhai @ Valji Kesari, there is no evidence collected during investigation to indicate involvement of the applicant.
12. It appears from the statement of Valjibhai that after the negotiation for purchase of the property bearing survey No.89, the applicant was approached to draft the power of attorney. The statement also indicates that the applicant was residing at Vadodara and therefore, the witness went to Vadodara with other witnesses and met the applicant and assigned the work of drafting. The statement also indicates that the applicant accordingly, prepared the document. The statement also indicates that as the witness was to go to Germany, he assigned witness Shambhu Bhimji to go with witness Dr. Ashok Pancholi and Prashant Bhatt to Ahmedabad for registration of power of attorney. The statement of this witness indicates that the applicant agreed to discharge his professional work to prepare the document.
13. Statement of Shambhu Bhimjibhai indicates that his maternal uncle Valjibnhai made investment in the land bearing survey No.89 of Magdalla and except that he does not know anything about the transaction in respect of the said land.
14. In view of above statements, it appears that the applicant discharged his duty as a professional by drafting a document. Prima facie, it appears that the applicant was assigned the work of preparing power of attorney after the negotiations for purchase of the land were over. Looking to the nature of role allegedly played by the applicant, discretion is required to be exercised in favour of the applicant.
15. It appears that the entire case is based on documentary evidence and the evidence has already been collected by the investigating agency. It also appears from the charge sheet that there are 12 accused and out of them, about 4-5 accused are yet to be arrested. It also appears that about 40 witnesses are to be examined to prove the prosecution case. It is not likely that the trial would over within short time. The applicant is a practicing advocate having good reputation and has been in jail since 13.2.2012. In the decision of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012)1 SCC 40, the Hon'ble Supreme Court has ruled that gravity alone cannot be decisive ground to deny bail. The Court also ruled that bail is the rule and jail is an exception and denial of bail on the ground of tampering of evidence has to be resorted to in most extraordinary circumstances only. In light of this decision and considering the fact that the applicant is an advocate having good reputation and considering the nature of evidence, it is likely that the trial would take considerable time. Therefore, balanced approach is required to be adopted and to grant bail rather than to keep the applicant under detention. There is nothing to indicate that detention of the applicant is necessary and further detention of the applicant would not serve any purpose. Therefore, the applicant is required to be released on bail. However, some conditions are required to be imposed upon the applicant to secure his presence at the time of trial.
16. As regards the contention that the applicant forged power of attorneys, the documents indicate that the applicant drafted the document as a professional advocate. It is true that the applicant identified the executant of the power of attorney, but the investigation papers indicate that identity cards issued by Election Commission duly notarized were produced by the parties to the document. It appears that the applicant relied upon his client as he was assigned the work of drafting the document. As observed earlier, the statement of two witnesses do not prima facie indicate that the applicant played role in hatching the criminal conspiracy and forged the document. The documents do not indicate that the applicant received any monetary benefit from the transaction.
17. In the result, the application is allowed and the applicant is ordered to be released on bail in connection with First Information Report registered as I-C.R. No.60/2012 with Umara Police Station, Surat, on executing a bond of Rs.50,000/- (Rupees Fifty Thousand Only) 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 injurious to the interest of the prosecution;
c) surrender his passport, if any, to the trial court within a week;
d) not leave India without prior permission of the Court concerned;
e) furnish the present address of his 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 the Court concerned;
18. The authorities will release the applicant only if not required in connection with any other offence for the time being.
19. If breach of any of the above conditions is committed, the Court concerned will be free to issue warrant or take appropriate action in the matter.
20. Bail bond to be executed before the Court having jurisdiction to try the case.
21. Rule made absolute. Direct Service is permitted.
(BANKIM.N.MEHTA, J.) shekhar* Top