Kamleshbhai Shankarlal Patel vs State Of Gujarat

Nikhil S. Kariel, J

Heard learned Senior Advocate Mr. Percy Kavina with learned Advocate Mr. Laxmansinh M. Zala for the applicant and learned APP Mr. L. B. Dabhi for respondent-State.

Rule. Learned APP Mr. Dabhi waives service of rule on behalf of the respondent-State.

By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant prays for being released on anticipatory bail in connection with FIR No. 11191014220132 of 2022 registered with Ellisbridge Police Station, District Ahmedabad City on 20.03.2022 for offences punishable under Sections 170, 182, 192, 229, 418, 420, 441, 466, 467, 468, 471, 474 and 120B of the Indian Penal Code.

The applicant having initially approached the learned Sessions Court, praying for the very selfsame relief of being released on anticipatory bail, having not succeeded before the learned Sessions Court, has approached this Court.

Learned Senior Advocate Mr. Kavina would submit that the present applicant, having been named in the FIR, and having as per the FIR played pivotal role in the alleged transaction, later on, he had tried his best to ensure that the entire transaction is reversed and the issue is settled between the parties. Learned Senior Advocate Mr. Kavina would submit that the allegation in the FIR being that the present applicant, in connivance with the other co-accused had initiated an arbitral proceedings and based upon some so-called interim award by the so-called arbitral tribunal possession of a property of the first informant had been attempted to be taken over and whereas the Police personnel were also made to provide protection/support the applicant, more particularly, under the guise that the interim award was some official document. Learned Senior Advocate Mr. Kavina would submit that as soon as the mistake, came to be realized by the present applicant, he had immediately, restored the possession to the first informant and whereas he had also tried to ensure that the entire dispute is settled between the parties. Learned Senior Advocate Mr. Kavina would also draw the attention of this Court to an order passed by this Court dated 21.03.2022 in proceedings where the entire so-called arbitration proceedings had been challenged and whereas learned Senior Advocate Mr. Kavina would submit that while the earlier orders in the petition would reflect the subsequent conduct of the present applicant of having reversed the transaction, by way of the said order, this Court has inter alia recorded that while the parties had tried to enter into an agreement, since the same could not be finalized an amount of Rs. 51 lakhs which was paid amongst others by the present applicant, had been treated to be forfeited in favour of the first informant. Having regard to the said circumstances, learned Senior Advocate Mr. Kavina would request that this Court may release the present applicant on anticipatory bail.

Learned Advocate for the applicant on instructions states that the applicant is 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 his remand. He would further submit that upon filing of such application by the Investigating Agency, the right of applicant-accused to oppose such application on merits may be kept open.

This application is strongly opposed by learned APP Mr. L. B. Dabhi who would submit that the present applicant in connivance with the other co-accused had committed systematic fraud whereby in spite of there being co agreement between the parties, an arbitration proceeding, was initiated before a so-called arbitrary tribunal and whereas on the strength of so-called interim arbitral award, the present applicant had attempted to forcibly take possession of a residential property of the first informant. Learned APP Mr. Dabhi would submit that having regard to the role played by the present applicant in the entire conspiracy, this Court may not consider the case of the present applicant.

Heard learned Advocates for the respective parties and perused the record. This Court has considered the following pertinent aspects.

[1] While it is undoubtedly true that the present applicant had initiated the arbitral proceedings before the so-called arbitrator, but it appears that at the very first instance, when after this Court had entertained the petition against the so-called arbitration proceedings, the applicant had appeared through his senior advocate, and from day one it was the stand of the present applicant that he would not contest the petition insofar as defending the so-called arbitral award or so-called arbitral proceedings and whereas an attempt had been made to find a solution to the issue.

[2] It also appears that the possession of the property which was attempted to be taken over, was restored forthwith and whereas there was no attempt whatsoever to try and contest the order of this Court whereby the possession was restored.

[3] That there appears to be an attempt to settle the issue and whereas an agreement was also entered into between the parties I.e the present applicant and the first informant amongst others and whereas part payment of Rs.51 lakhs had been paid to the first informant and whereas since the agreement could not attain finality, the amount of Rs. 51 lakhs had been treated to be forfeited in favour of the first informant and whereas the said aspect also had remained uncontested, more particularly, at the behest of the present applicant.

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 in [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 in (1980) 2 SCC 565. This Court has also taken into consideration the recent decision of the Apex Court in the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) and another reported in (2020) 5 SCC 01.

In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to the FIR No. 11191014220132 of 2022 registered with Ellisbridge Police Station, District Ahmedabad City, the applicant shall be released on bail on furnishing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one surety of like amount, on the following conditions:

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

(b) shall remain present at the concerned Police Station on 08.07.2022 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 him 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 his residence till the final disposal of the case or till further orders;

(f) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week.

Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicant to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. 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.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent.

Direct service is permitted.