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CR.MA/2129/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2129 of 2011
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JAGUBHAI
NAZBHAI KHACHAR & 2 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
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Appearance :
Mr.
N.D. Nanavaty, Senior Advocate with MR
HRIDAY BUCH for
Applicants
Mr.
A.J. Desai, APP, for respondent No.1
Mr.
S.V. Raju, Senior Counsel with Mr. V.R. Popat for the
complainant
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 04/03/2011
ORAL
ORDER
1 Mr.
N.D. Nanavay, learned Senior Counsel appearing for the applicants
submits that, in the first information report, property Nos. 76/3,
77/3, 78/3 and 79 of 3 and other lands along with factory building,
machinery, etc. situated at village Paliyad, is alleged to have been
purchased and transferred by the applicants fraudulently, however,
so far as applicant No.1 is concerned, he is not named in the first
information report and, so far as applicant No.2 is concerned,
transaction was entered into by the father of applicant No.2. Without
admitting and without prejudice to the rights and contentions, it is
submitted that, for the transactions carried out by the elders of the
family, the applicants cannot be held liable. It is further submitted
that, in 2008 and 2009, two civil suits were filed in respect of the
alleged sale deeds and, in one of the suits, the Civil Court has
restrained the purchasers from transferring the property to any third
party. It is further submitted that the complaint is filed after
period of one and half years after filing of the suits. Considering
the nature of allegations and the fact that the applicants will be
available during the course of trial being stationed at Paliyad,
District Surendranagar, they may be enlarged on bail.
2 Mr.
S.V. Raju, learned Senior Counsel appearing for the complainant has
opposed to grant of bail and submitted that nature of transaction
including execution of banakhat and subsequent cancellation and
execution of sale deeds on the same day would reveal that the
applicants herein intended to transfer the property though they were
not owners and, therefore, the offences are registered for which this
Court considering seriousness and gravity of offences would not like
to enlarge the applicants on bail. Besides, it is submitted that
initiation of proceedings of civil nature may not have any bearing on
criminal case and, if the facts disclose criminality of the offences,
registration of first information report by itself cannot be said to
be in any manner a procedure or process undertaken by the complainant
for oblique motive.
3 Learned
APP has also opposed to grant of bail looking to gravity of offences.
4 Having
heard the learned counsel for the parties and on perusal of the
record, considering the nature of transaction, belated action on the
part of the complainant, pendency of civil proceedings to which not a
whisper is made in the first information report, the
role attributed to the applicants, without discussing the evidence
in detail, prima facie, this Court is of the opinion that this is a
fit case to exercise the discretion to enlarge the applicants on
bail.
5 The
parties do not press for further reasoned order.
6 In
the facts and circumstances of the case, the application is allowed
and the applicants are ordered to be released on bail in connection
with first information report registered at I-35 of 2010 with
Paliyad Police Station, for the offences punishable under Sections
380, 403, 427, 441, 451, 467, 468, 471, 114 and 120B of the Indian
Penal Code, on their executing a bond of Rs.5,000/- (Rupees five
thousand only) each with one surety of the like amount to the
satisfaction of the trial court and subject to the conditions that
they shall
i. not
take undue advantage of their liberty or misuse their liberty;
not
act in a manner injuries to the interest of the prosecution;
surrender
their passports, if any, to the lower court within a week;
not
leave the State of Gujarat without prior permission of the Sessions
Judge concerned;
mark
their presence at the concerned police station on the first Sunday
of every month between 10 a.m. And 3 p.m till commencement of trial.
furnish
the present address of their residence to the I.O. and also to the
Court at the time of execution of the bond and shall not change the
residence without prior permission of this Court;
The
Authorities will release the applicants only if they are 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. 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
applicants on bail.
Rule
is made absolute to the aforesaid extent. D.S. Permitted.
(Anant
S. Dave, J.)
(swamy)
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