Point of Law: Since the High Court proceeded under the footing as if the appellant had filed the application only for cancellation of bail for which, the consideration is different, the impugned order is liable to be set aside and the matter is remitted to the High Court for consideration of the matter afresh.

ORDER :

1. By way of the present application, applicant has prayed to allow this application by cancelling regular bail granted to the Respondent No.2 vide order dated 11.05.2020 passed by Ld. I/c. 14th Addl. Sessions Judge, Rajkot in Cr.M.A. No. 787 of 2020 herein in connection with the offence registered as C.R. No. I 11208053200148 of 2020 lodged with Rajkot Taluka Police Station, Rajkot and be pleased to order him to be taken into judicial custody forthwith and be pleased stay operation of the order dated 11.05.2020 as stated hereinabove and direct the respondent No.2 to surrender to judicial custody.

2. Heard learned advocates for the respective parties and learned APP for the respondent-State.

3. Learned advocate for the applicant submits that the order passed by the learned Judge is not sustainable as learned Judge has not even recorded his reasons as to how there is no prima facie case against the applicant and what role is played by him. That the order passed by the learned Judge is not sustainable since it is based on a misapplication of a fact that investigation is over and in fact the Investigating Officer, in his affidavit, has clearly stated that the investigation is in progress. That, the order passed by the learned Judge is not sustainable since the very theory put forward by the respondent no.2 of being a bonafide purchaser holds no water since it was clear on record that a property, the market value of which is about Rs. 25 crores, no bonafide purchaser would question the same being sold at a thrown away price of Rs 1 crore. That the order passed by the learned Judge is erroneous since the learned Judge has failed to appreciate that the bank accounts are opened in the name of mentally unsound Mahendra two or three days before when the transactions is to be shown on paper and within a couple of days, the transferred amount is withdrawn by cheques drawn upon self which ex facie indicates a large conspiracy and connivance between the accused rather than a presumption of innocence. That, learned Judge has failed to consider that other accused were yet to be apprehended and both the accused which were arrested came to be released by the learned Judge. That, learned Judge has failed to consider that if the time of lodgement of the FIR was suspicious, the accused cannot get benefit for the same. That, complaint was given to Police Commissioner way back and the FIR is lodged at a later stage which does not in anyway lessen the guilt of the accused and the attending circumstances clearly show, and the learned Judge also believed that the First Informant's family was wronged and yet the learned Judge went on to grant bail to the Respondent no.2 even before the completion of investigation. Lastly, learned advocate for the applicant has requested to allowed present application.

4. Learned APP for the respondent-State has supported the arguments advanced by the learned advocate for the applicant and submitted that prima facie offence is committed by the respondent no.2 punishable under Section 465, 467, 468, 471 and Section 114 of the Indian Penal Code hence, bail granted by learned Sessions Court, Rajkot is required to be cancelled.

5. Learned advocate for the respondent no.2 has objected the submissions made by learned advocate for the applicant and submitted that the matter of civil nature has been tried to give the colour of criminal offence. That, it is not true that the husband and sons of the applicant are mentally unstable and respondent had taken advantage by showing the photographs of the girls and enticing them to marry off with these girls and thus alluring them to enter into registered sale deed. That, husband of the applicant had filed probate application being Civil Misc. Application No. 120 of 2010 wherein the husband of the applicant had also filed affidavit wherein he had not disclosed that he is mentally challenged persons. That the daughter of the present applicant had filed Special Civil Suit No. 147 of 20