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CR.MA/10583/2011 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10583 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE G.B.SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? Yes
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
BANSI
BABUBHAI GAJJAR - Respondent(s)
=========================================================
Appearance
:
MR
KP RAWAL ADDL PUBLIC
PROSECUTOR for
Applicant(s) : 1,
M/S THAKKAR ASSOC. for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 28/09/2011
ORAL
JUDGMENT
1.0 This
Criminal Misc. Application under the provisions of Section 439(2)
read with Section 482 of the Code of Criminal Procedure has been
filed for cancellation of anticipatory bail granted to the
respodnent-accused vide order below Exh. 9 dated 27.04.2011 passed
by the learend 3rd Additional Sessions Judge, Jamanagar in
Criminal Misc. Application No. 212 of 2011 whereby the
respondent-accused was granted anticipatory bail in connection with
the offence registered before the Jamnagar City “A”
Division Police Station, Jamnagar being I-C.R. No. 55 of 2011 for the
offence punishable under Sections 447, 465, 467, 471 and 506(2) of
the Indian Penal Code.
2.0 The
facts leading to the filing of the complaint is that the present
complainant who was residing at Indiranagar Road, Jamnagar had
purchased the plot No. 93-94 paiki bearing Revenue Survey No. 1351 by
way of sale-deed. The respondent-accused along with other co-accused
whose name are mentioned in the F.I.R had illegally entered in to the
said plot and started construction of work of plinth level. As the
complainant tried to prevent them to do so, the accused had
administered threat of killing him by saying that they have
purchased the said plot. On inquiry, it was found by the complainant
that both the plots were sold by way of bogus sale-deed by using the
same as if they are true, correct and genuine documents.
2.1 Upon
F.I.R being filed, on apprehension of their arrest, the accused had
preferred anticipatory bail application being Criminal Misc.
Application No. 212 of 2011 before the learned 3rd
Additional Sessions Judge, Jamnagar. After hearing both the parties,
the learned Judge granted the anticipatory bail to the
respondent-accused vide order dated 27.04.2011 below Exh. 9 in
Criminal Misc. Application No. 212 of 2011.
3.0 Being
aggrieved by and dissatisfied with aforesaid order of granting
anticipatory bail to the respondent-accused, the applicant-State of
Gujarat preferred the present Criminal Misc. Application.
4.0 Learned
Additional Public Prosecutor Mr. K.P. Rawal appearing for the
applicant-State has submitted that the name of the respondent-
accused came to be revealed in the F.I.R from the inception and,
therefore, it cannot be believed that accused persons are falsely
implicated in the offence in question
5.0 Learned
Additional Public Prosecutor further submitted that present
respondent-accused with the other main accused persons illegally
entered into plot of complainant and thereby tried to make out
construction by way of showing them as purchaser by creating forged
and bogus documents of agreement to sell. The role of the present
accused persons is of creating forged and bogus documents as if they
are true, correct and genuine. Hence, the offence alleged against the
accused is of serious nature and their interrogation is required to
be made.
6.0 Learned
Additional Public Prosecutor further submitted that investigation has
been going on, statement of the witnesses are yet to be recorded and
the relevant aspect that how the accused persons got two documents of
agreement to sell to be investigated, the learned Judge ought not to
have granted anticipatory bail to the accused.
7.0 Learned
Advocate appearing on behalf of the respondent- accused submitted
that by recent amendment in law, in such type of alleged offence, the
police cannot arrest the accused persons. The accused is ready to
remain present before police and Hon’ble Court on each date of
proceedings. But the police wish to arrest respondent violating the
clear provisions of the law and mandate of law, and, therefore, this
application for cancellation of bail granted to the
respondent-accused may be dismissed.
8.0 Learned
Advocate appearing for the respondent has further submitted that the
co-accused persons who have filed application for anticipatory bail
being Criminal Misc. Application No. 118 of 2011 in the Sessions
Court have been granted the anticipatory bail on the ground of
parity.
9.0 I
have considered the rival submissions made by learned Advocates for
the parties and also carefully gone through the order dated
27.04.2011 passed by the learned 3rd Additional Sessions
Judge, Jamnagar in Criminal Misc. Application No. 212 of 2011 in
light of the documentary evidence forthcoming on the record. The
present respondent is shown as original accused No.5 in the complaint
filed by the complainant which has been registered vide I C.R. No. 55
of 2011 before the Jamnagar City “A” Division Police
Station, Jamnagar. The present respondent- Bansi Babubhai Gajjar
appears to have sold the land in dispute to Arjan Natha Gojiya. Then
it has been sold to Deva Sidi Keshvala. Deva Sidi Keshvala sold it to
Khima Naga Chhaaiya and from Khima Naga Chhaiya it was purchased by
one of the accused Ala Bhimsi by registered sale-deed dated
24.06.2010. The complainant appears to have purchased the said land
which is in dispute subsequent to the earlier sale-deed from the
heirs of Mohan Kadva i.e. from Ramesh Mohan who is the son of Mohan
Kadva on 30.09.2010 through registered sale-deed. In my view, the
dispute appears between the parties can be resolved by the Civil
Court. It is not denied by the learned Additional Public Prosecutor
that the co-accused persons who have filed Criminal Misc. Application
No. 118 of 2011 before the trial Court for anticipatory bail had been
granted. All these
aspects have been considered by the learned Sessions Judge and in my
view, the discretion exercised by the learned Sessions Judge appears
to be correct. For cancellation of bail, conduct subsequent to
release on bail and the supervening circumstances are relevant to be
looked into. To me there appears no overwhelming circumstance which
warrants cancellation of the bail order passed by the trial court.
10.0
This
Court is of the view that the learned Trial Judge has considered all
relevant parameters while granting anticipatory bail to the
respondent. On behalf of the applicant, nothing has been indicated to
show that the respondent has, in any manner, misused the liberty
granted to him. In the circumstances, no case is made out for
cancellation of the anticipatory bail granted to the respondent. The
application, being devoid of merits, is accordingly rejected. Rule
is discharged.
(G.B.SHAH,
J.)
niru*
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