Hiraji Danaji Thakor vs State Of Gujarat

Nirzar S. Desai, J

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants - accused have prayed for anticipatory bail in connection with the FIR bearing C.R.No.11216025230165 of 2023 dated 28.4.2023 registered with Santej Police Station, District : Gandhinagar for the offence punishable under Sections 409, 465, 467, 468 and 474 of Indian Penal Code.

Learned advocate appearing for the applicants submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicants will keep themselves available during the course of investigation, trial also and will not flee from justice.

Learned advocate for the applicants on instructions states that the applicants are ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for their remand. He further submit that upon filing of such application by the Investigating Agency, the right of applicants accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicants may be granted anticipatory bail.

Learned Additional Public Prosecutor appearing on behalf of the respondent – State has opposed grant of anticipatory bail looking to the nature and gravity of the offence.

Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicants.

This Court has considered following aspects :-

(i) Learned Senior Advocate Mr. Jal Unwalla with learned advocate Mr. Premal Rachh appearing for the applicants has placed on record affidavit dated 7.6.2023 signed by all the four trustees namely (i) Shakuji Karshanji Thakor (ii) Hiraji Danaji Thakor

(iii) Budhaji Aataji Thakor (iv) Kantiji Ramsangji Thakor and the same is taken on record.

(ii) Affidavit/Undertaking submitted to this Court reads as under :-

We, the undersigned, (1) Shakuji Karshanji Thakor, (2) Hiraji Danaji Thakor, (3) Budhaji Aataji Thakor, (4) Kantiji Ramsangji Thakor who are arraigned as accused no.1 to 4 in F.I.R. registered as C.R. No. 11216025230165/2023 with Santej Police Station, Dist. Gandhinagar, do hereby undertake as under:-

We humbly submit that the total consideration of Rs.2,92,12,000/- for the sale of subject land bearing Sy.No.316 Mouje Village:Unali, Ta:Kalol Dist:Gandhinagar has been deposited in joint account no.746610053114 of Baroda Gujarat Gramin Bank, Rancharda of the four accused persons (administrators). We say and submit that out of the total consideration of Rs.2,92,12,000/-, an amount of Rs.1,16,84,496/- has been paid towards premium as per the order dtd.18.06.2021 of Ld. Collector.

We further submit that after payment of above amount of premium, the remaining amount of Rs.1,75,27,504/- is yet lying in the joint account no. 746610053114 of Baroda Gujarat Gramin Bank, Rancharda of all four accused persons of the impugned FIR and we, the signatories of this undertaking, jointly undertake that, the said amount, is being deposited for the time being with the Registrar, High Court of Gujarat by way of Bankers Cheque No.001415 dtd.06/06/2023. We further undertake that no sooner and as and when a bank account in the name of the Trust is opened and is functional and the said amount is transferred directly by the Registrar, High Court of Gujarat in the said bank account of the Trust, we shall not have any objection to the above mentioned transfer.

We also undertake that once the amount accrued along with interest is transferred by the Registrar, High Court of Gujarat to the account of the Trust, we shall not utilize and withdraw any amount, including the present amount for the personal use of any of the present signatories and same shall be utilized only for the purposes of the administration and development of the Trust with the necessary permissions of competent authority as required under the law.

That the present Undertaking may kindly not be construed as an admission of any kind of guilt in the present criminal proceedings.

Solemnly affirmed at ____on this 7th day of June, 2023."

(iii) in view of the aforesaid affidavit, learned senior advocate Mr. Jal Unwalla submitted that as the applicants were never intending to siphon any of the money of the trust but because of their ignorance without getting trust registered and without taking necessary permission with a bonafide intention they had sold the trust property in the form of land which a land in question to the purchaser of the property and therefore, with a view to show their bonafide and to rectify the act with a view to intention to rectifytheiract,theaforesaid affidavit/undertaking is filed by all the accused persons including present applicants.

(iv) learned senior advocate Mr. Unwalla upon instruction states that all four accused persons including present applicants have parted with the money received towards sale consideration of land in question forever and as the formality of getting the Pan-Card and other documents of the trust are going on which is mandatory for opening a bank account. As today, the bank account in the name of trust is not opened, the applicants have submitted a banker's cheque of Rs.1,75,27,504/- having joint account No.746610053114 drawn on Baroda Gujarat Gramin Bank, Rancharda and the same may be deposited in the Registry of this Court and the applicants shall intimate the registry of this Court once the bank account of the trust is open and thereafter, the aforesaid amount along with any interest accrued on it be deposited in the account of trust.

(v) learned senior advocate Mr. Unwalla has also pointed out the fact that both these applicants are over the age of 70 years and considering their age also considering the fact that with a view to show their bonafide they have not retained a single penny received towards the sell consideration, this Court may grant them anticipatory bail.

(vi) learned senior advocate Mr. Unwalla has also apprised this Court about the fact that both these applicants and all four accused persons are semi literate persons, not well-verse with the intricacy of various laws and therefore, they sold the land without knowing the consequences of selling the land and therefore, considering the age as well as educational standard also they deserves to be enlarged on anticipatory bail;

(vii) learned senior advocate upon instruction states that they have no past antecedent against the present applicants and they are ready and willing to co-operate with the investigation.

In the facts and circumstances of the present case, since the custodial interrogation of the applicants are not required, I am inclined to consider the case of the applicants.

This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565.

In the result, the present application is allowed. The applicants are ordered to be released on bail in the event of their arrest in connection with FIR C.R.No.11216025230165 of 2023 dated 28.4.2023 registered with Santej Police Station, District : Gandhinagar, on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety each of like amount on the following conditions:

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 13.6.2023 between 11.00 a.m. and 2.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade them from disclosing such facts to the Court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the Court concerned and shall not change residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial Court and if having passport shall deposit the same before the concerned trial Court within a week; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;

(h) Registry of this Court is directed to accept the Banker's cheque No.001415 through learned advocate Mr. Premal Rachh, which shall be accepted and once deposited in the account of this Court, the amount deposited be invested in Fixed Deposit initially for a period of three months and thereafter, till the details of the bank account open in the name of trust is provided by learned advocate Mr. Premal Rachh by way of note to the registry of this Court, the same may be reinvested for further period of three months and thereafter, once the bank account in the name of trust is open viz. Nilkanth Mahadev, Unali having Registration No.A/889/Gandhinagar, the amount accrued along with interest be transferred in the trust account.

Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicants. The applicants 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 applicants, 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.

At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

Rule is made absolute to the aforesaid extent.

Direct service is permitted.