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2024 Supreme(Online)(GUJ) 424
HIGH COURT OF GUJARAT
MRM
DIMPLE ASHOKKUMAR CHAUDHARY – Appellant
Versus
STATE OF GUJARAT – Respondent
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 23238 of 2023
Anticipatory bail cannot be granted when the accused is absconding and evading the investigation process.
Headnote:
Criminal Procedure - Code of Criminal Procedure, 1973 - Section 438 - Anticipatory Bail - Applicant Accused Evading Investigation Process
Fact of the Case:
The applicant-accused filed an application under Section 438 of the Code of Criminal Procedure, 1973 seeking anticipatory bail in connection with an FIR registered for offences under Sections 406, 420, 465, 467, 468, 471, 120B of the Indian Penal Code. The FIR alleged that the applicant along with other co-accused had forged the signature of the first informant on two power of attorneys in favor of the first informant's wife, who then executed two sale agreements in favor of the co-accused.
Finding of the Court:
The court found that the applicant has been evading the investigation process by not appearing despite notices and summons, leading to the issuance of a warrant under Section 70 of the Cr.P.C. The court also noted that the applicant had a criminal track record of a similar nature of offense, where she was arrested but did not appear before the trial court, leading to the issuance of a non-bailable warrant. The court concluded that the applicant played an active role in the commission of the alleged offenses and no case was made out to exercise discretion in her favor.
Issues: Whether the applicant-accused should be granted anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.
Ratio Decidendi: The court held that when the accused is absconding and declared as a proclaimed offender, anticipatory bail cannot be granted. The applicant's conduct of evading the investigation process and having a criminal track record of a similar nature of offense were the key factors that influenced the court's decision to dismiss the anticipatory bail application.
Final Decision: The court dismissed the applicant's application for anticipatory bail.
ORDER
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for enlarging him on Anticipatory Bail in connection with the FIR being C.R. No. 11191048230463 of 2023 registered with Sarkhej Police Station, Ahmedabad City for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 120B of the Indian Penal Code.
2. Heard learned advocate Mr.A.S.Timbalia appearing for the applicant and learned APP Mr.T.C.Kathiriya for the respondent State.
3. Learned advocate for the applicant submitted that the incident alleged in the FIR had occurred during the period between 27.5.2022 to 2.6.2023, for which the FIR came to be lodged on 2.6.2023. Thus, the FIR came to be lodged by the first informant after delay of considerable period. The delay caused in lodging the FIR has not been satisfactorily explained by the first informant in the FIR itself.
4. As per the case of prosecution, the present applicant along with the other co-accused got executed two Power of Attorneys in favour of the wife of the first informant. The signature of the first informant on the said Power of Attorneys was allegedly forged. On the basis of the said Power of Attorneys, which were executed in favour of the wife of the first informant, she had executed two different agreements to sale, qua two parcels of land belonging to the first informant in favour of the co-accused and for the said agreements to sale, the amount of consideration has also been received by the wife of the first informant.
However, interestingly, in the present offence, the wife of the first informant has not been arraigned as an accused for the reasons best known to the first informant. The present applicant is a lady, who has not received any financial gain out of the transactions in question. The FIR in question has been lodged by the first informant with some ulterior motive after a delay of almost four years from the date of alleged incident. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions.
5. The application is opposed by learned APP Mr.Trupesh C. Kathiriya inter alia contending that the present applicant has not made herself available for the purpose of investigation and therefore, a warrant under Section 70 of the Cr.P.C. had been issued against her. The applicant has been getting herself away from the process of investigation and therefore, as per the settled legal position, the discretionary relief of Anticipatory Bail should not be granted to the present applicant.
5.1 Learned APP seeks to rely upon the judgment of the Hon’ble Apex Court in the case of Prem Shankar Prasad Vs. State of Bihar [(2022) 14 SCC 516]. He therefore, submitted that the present applicant has played an active role in connivance with the other co-accused in the present offence. He therefore submitted to dismiss the present application.
6. Learned advocate Mr.Dipen Desai appearing for the original complainant has also opposed the present application contending that the present applicant has another antecedent for commission of similar nature of offence and in the said offence also, FIR came to be lodged by the present first informant. In the said offence, the applicant was ordered to be enlarged on regular bail, however, since, after being enlarged on regular bail, the applicant did not remain present before the concerned trial court and therefore, a non-bailable warrant came to be issued upon her. In the present offence also warrant under Section 70 of the Cr.P.C. has been issued against the applicant. Therefore, the discretion should not be exercised in favour of the present applicant. He submitted that the present applicant along with the other co-accused had taken advantage of the ailment of the wife of the first informant and had got executed two Power of Attorneys with a forged signature of the first informant in favour of his ailing wife. The wife, in
