Gujarat High Court
Satyajit vs State on 7 October, 2011
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCR.A/810/2011 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 810 of 2011
With
CRIMINAL
MISC.APPLICATION No. 11636 of 2011
In
SPECIAL
CRIMINAL APPLICATION No. 810 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2.
To
be referred to the Reporter or not ?
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5.
Whether
it is to be circulated to the civil judge ?
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SATYAJIT
BALLUBHAI DESAI & 2 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance :
MR.
N.D. Nanavati Sr. Adv with MRMPSHAH
for Applicant(s) : 1 -
3.MS. KRUTI M SHAH for Applicant(s) : 1 - 3.
MR. L.B. DABHI, ADDL.
PUBLIC PROSECUTOR for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 29 /09/2011
CAV
JUDGMENT
1.0. Present Special Criminal Miscellaneous Application No.810 of 2011 has been preferred by the petitioners-original accused to quash and set aside the impugned order dated 31.3.2011 passed by the learned JMFC, Valod granting police remand for three days of the petitioner in respect of M Case No. 1 of 2004 registered at Valod Police Station for the offences under Sections 406, 420, 467, 468, 471, 504, 506(2) and 114 of the Indian Penal Code.
2.0. Before considering the impugned order, few facts and chronology of events to appreciate the conduct on behalf of the petitioners deserve consideration, which are as under:
2..1. One Surajben widow of Badharsinh alias Babarsinh Chauhan, filed one criminal complaint in the court of learned Judicial Magistrate (First Class), Valod being Criminal Case No.3 of 2004 against the respondent Nos.3 to 8 herein for the serious offences punishable under sections 406, 420, 467, 468, 471, 504, 506(2) read with sec.114 of Indian Penal Code alleging inter-alia that the husband of the complainant namely Badharsinh alias Babarsinh Ratanji had expired on 10/6/1967 and the entry to that effect was registered with the Government Office. That the elder brother of the complainant's husband namely Becharsinh Ratansinh had expired on 11/3/1957 and the entry to that effect was also registered with the office of the Panchayat. That another elder brother of the husband of the complainant namely Kubersinh Ratanji Chauhan had expired on 14/1/1960 but the entry to that effect was not registered and therefore, the complainant sworn an affidavit stating the date of the death; that the father-in-law of the complainant namely Ratanji Bhulabhai Chauhan was having agricultural land bearing Survey No.220 admeasuring about 10 Gunthas, situated at Virpore, Taluka Valod, District Surat and after his death, the name of Becharsinh, Kubersinh and Badharsinh were entered in the revenue record on 27/7/1929 vide Entry No.43. It was further alleged in the complaint that when the complainant got copy of the revenue record in respect of the aforesaid land, she came to know that the name of one Satyajitbhai Ballubhai Desai (petitioner no.1 herein)is entered and when she inquired about the same from the Talati-cum-Mantri, he gave evasive reply. That on further inquiry, she came to know that said Satyajitbhai Ballubhai Desai has created a bogus and forged power of attorney of late Becharbhai Ratanjibhai, Kuberbhai Ratanjibhai and Badharbhai Ratanjibhai in the name of one Mr.Jaydipbhai Ranchhodbhai Solanki who is a fictitious person. It was further alleged in the complaint that the accused persons have created bogus and forged power of attorney on 29/7/2003 in collusion with each other which is bearing signature of late Kuberbhai, late Babarbhai and late Becharbhai and the said forged power of attorney has been created by the said Satyajitbhai Ballubhai Desai and one Pavanbhai Durlabhbhai. It was further alleged that on the basis of said bogus and forged power of attorney, said Jaydipbhai Ranchhodbhai (who is fictitious person) executed registered sale deed on 2/8/2003.
Thus, the said Satyajitbhai Ballubhai Desai in collusion with other accused persons created bogus power of attorney of late Babarbhai, late Becharbhai and late Kuberbhai, who have expired long back and created forged sale deed. It was further alleged by the complainant in the complaint that as per her knowledge, accused No.1 has created fictitious persons i.e. accused Nos.2 and 4 and created bogus power of attorney bearing signature /seal of the Government Officials after making signatures of the persons who have expired long back. That sale agreement executed on the basis of bogus power of attorney which was prepared by the accused No.3, signed by the accused No.1 as purchaser of the stamp, accused No.3 identified the accused No.2 and accused No.5 and accused No.1 have made false and forged signatures and thus created bogus registered sale deed. It was further alleged in the complaint that the complainant gave complaint to Buhari Out Post Police Station but since the accused No.1 is a politician and builder, the police had not taken any steps. It was also further alleged in the complaint that after coming to know about the aforesaid complaint, the accused Nos.1, 3 and 6 have given threats of dire consequences to the complainant.
2.2. That the learned Magistrate, after considering the averments and allegations in the complaint and after hearing the learned advocate appearing on behalf of the complainant, passed reasoned order dtd.18/3/2004 directing police investigation under sec.156(3) of the Code of Criminal Procedure, directing Valod Police Station to register the complaint as M.Case / FIR and directing the Dy.Superintendent of Police, Vyara to look into the complaint and investigate the offences. While passing the said order, the learned Magistrate observed that on considering the complaint and after hearing the learned advocates, it appears that the accused, in connivance with each other have made false and fabricated signatures and created bogus and forged documents and used the same as genuine documents and the accused persons are very influential and therefore, local police will not be in a position to investigate the case and therefore, looking to the serious offences, investigation is to be carried out by the higher officials. By making such observations, the learned Judicial Magistrate (First Class) passed order for investigation under sec.156(3) of the Code of Criminal Procedure by the Dy.Superintendent of Police.
2.3. That thereafter, pursuant to the aforesaid order dtd.8/3/2004, complaint was sent to the Valod Police Station which has been registered as M.Case No.3 of 2004. That the investigation was in progress and before any final report or charge-sheet could be submitted under sec.173 of the Code of Criminal Procedure, it appears that the petitioners won over the original complainant who is poor lady and original complainant gave an application before the learned Magistrate stating that the matter has been settled and investigation by the police is pending and the final report has not been submitted and as the complaint is to be withdrawn, it was requested to recall the complaint from the police investigation and it was also requested to recall the oder of investigation so that the complaint can be disposed of. That the said application was submitted on 14/2/2005. That the learned Magistrate passed the order dtd.14/2/2005 below application Ex.4 directing the police to stop the investigation and asked the police to return the papers of investigation and the complaint. Being aggrieved and dissatisfied with the impugned order passed below application Ex.4 dtd.14/2/2005 stopping further investigation by the police and directing to recall the complaint from the Dy.Superintendent of Police without investigation, one Randhirsinh Dipsinh Parmar- applicant of Criminal Miscellaneous Application No.11636 of 2011 preferred Special Criminal Application No.918 of 2007 and this Court by a detailed judgment and order dated 30.11.2007 allowed the said Special Criminal Application and quashed and set aside the order passed by the learned Magistrate recalling the earlier order of investigation sending the complaint to the concerned police station for investigation under Section 156(3) of the Code of Criminal Procedure and directed Dy.Superintendent of Police, Vyara, investigating officer to proceed further with the investigation and complete the same as ordered by the learned Magistrate earlier and submit appropriate report before the learned Magistrate in accordance with the provisions of the Code of Criminal Procedure.
2.4. It appears that thereafter when the investigation was in progress, again the petitioners preferred Criminal Miscellaneous Application No.13262 of 2008 before this Court to quash and set aside the complaint filed before the learned Magistrate, invoking Section 482 of the Code of Criminal Procedure on the same ground which was canvassed earlier at the time of deciding the earlier Special Criminal Application No.918 of 2007, more particularly submitting that the dispute has been settled with the original complainant and earlier sale deed executed in favour of applicant no.1 herein-original accused no.1, which was got executed on the basis of forged power of attorney has been canceled and thereafter again another sale deed has been got executed in his favour. That the learned Single Judge initially admitted the said Criminal Miscellaneous Application. That the said application came up for hearing before this Court and by judgment and order dated 24.12.2010, this Court dismissed the aforesaid Criminal Miscellaneous Application No.13262 of 2008 and declined to quash and set aside the said complaint and in para 16 while dismissing the said Criminal Miscellaneous Application, this Court observed as under
"16.On the contrary considering the earlier judgment and order passed by this Court dated 30/11/2007 in Special Criminal Application No. 918/2007 with respect to the very criminal case and considering the recent decision of the Hon'ble Supreme Court in the case of ARUN GULAB GAWALI AND ORS (Supra) and the observation of the Hon'ble Supreme Court in the said decision reproduced hereinabove the prayer of the applicant to quash and set aside the impugned Criminal Case and further proceedings cannot be accepted. In the present case even in view of the subsequent development the original complainant may not support the prosecution still a case can be made out against the applicant looking to the nature of allegation leveled against the applicant i.e creating of forged power of attorney of the persons, who were already dead and thereafter to get the registered sale deed executed in his favour. Therefore, in the facts and circumstances of the case, the impugned Complaint is not required to be quashed and set aside in exercise of powers under Section 482 of the Code of Criminal Procedure".
2.5. That thereafter, the Investigating Officer started investigation in the said complaint. As the petitioners were apprehending their arrest, they approached the learned Sessions Court for anticipatory bail, which came to be dismissed by the learned Sessions Court by order dated 18.3.2011. Being aggrieved and dissatisfied with the aforesaid order passed by the learned Sessions Court rejecting the anticipatory bail, the petitioners preferred Criminal Miscellaneous Application No. 3978 of 2011 before this Court and the learned Single Judge allowed the said application directing the Investigating Officer to release the petitioners on bail in case of their arrest on certain terms and conditions as mentioned in the said order and one of the condition was that it would be open for the competent authority to apply for the police remand of the applicants. That the learned Single Judge while granting anticipatory bail to the applicants, imposed the following condition, which reads as under:
"(g).
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 an 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".
2.6. It appears that thereafter the Investigating Officer submitted the application before the learned Magistrate for police remand by submitting that custodial investigation of the accused is required to find out the truth and reach to the right conclusion as the accused persons are not stating correct facts with whom the original power of attorney is. The learned Magistrate by impugned order has allowed the said application and granted three days police remand of the petitioner. Being aggrieved and dissatisfied with the impugned order passed by the learned Magistrate granting three days police remand of the petitioners-accused, the petitioners-original accused have preferred present Special Criminal Application No.810 of 2011.
2.7. It is to be noted that learned Single Judge in the present case directed to issue notice upon respondents making it returnable on 15th July 2011 and continued ad-interim relief granted earlier, however though the notice was made returnable on 15th July 2011, for whatever reason Registry did not notify the present application on board on 15.7.2011 and thereafter also the same was not notified and only on filing of Criminal Miscellaneous Application No. 11636 of 2011 to vacate the ad-interim relief granted earlier, this Court directed the Registry to place the present Special Criminal Application No.810 of 2011 on board for admission hearing and / or inquired from the Registry why the Special Criminal Application was not placed on board on 15.7.2011 though the notice was made returnable on 15.7.2011 and the Registry has stated that as papers were not traceable, the application was not notified on board. It is very unfortunate that the papers were lost from the Registry and even no efforts were made by the Registry to trace out the papers. If the Criminal Miscellaneous Application No.11636 of 2011 would not have been filed, the Registry would not have found out the matter and place the matter on board for hearing. The aforesaid deserve serious consideration.
2.7. In backdrop of the above facts and circumstances, present application of the petitioners to quash and set aside the impugned order passed by the learned Magistrate granting three days police remand is required to be considered.
3.0. Shri N.D. Nanavati, learned Senior Advocate appearing on behalf of the petitioners-original accused has vehemently submitted that as such no ground for granting police remand is emerging from the report submitted by the Investigating Officer. Shri N.D. Nanavati, learned Senior Advocate appearing on behalf of the petitioners-original accused has also relied upon the additional affidavit on behalf of the petitioners submitting that all throughout the petitioners have cooperated the Investigating Officer and they have also appeared before the Investigating Officer and gave their statements and, therefore, police remand is not required and / or warranted. It is submitted that the petitioner No.1 has been interrogated for hours by the Investigating Officer and as such no further investigation and/ or remand qua the petitioner no.1 is needed.
3.1. Shri N.D. Nanavati, learned Senior Advocate appearing on behalf of the petitioners-original accused has relied upon the decision of the learned Single Judge in the case of Jairajsinh Temubha Jadeja v. State of Gujarat reported in 2002(1) GLH 645. It is submitted that as held by this Court in the aforesaid decision grant of remand is an exception and not the rule and for that investigating agency is required to make out a case. It is further submitted that as held by the learned Single Judge in the aforesaid decision the police remand of the accused cannot be granted to the Investigating Officer to collect the evidence against the accused. Shri N.D. Nanavati, learned Senior Advocate appearing on behalf of the petitioners-original accused has also relied upon the decision of this Court in the case of Harendra Vallabhdas Kanabar v. State of Gujarat reported in 1999(2) GLH (U.J)13 by submitting that as held by this Court powers of the Magistrate to remand the accused to the police custody are not to be exercised mechanically but judiciously and Magistrate is required to strike balance between need for effective and thorough investigation and personal liberty of the accused.
3.2. Therefore, it is submitted that in the present case when the document which was alleged to have been forged one has been canceled and another new document was executed in favour of the petitioners by the original complainant and when the investigation has been concluded, it is requested to allow the present application.
4.0. Petition is opposed by Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of respondent State/ Investigating Officer. It is submitted that as such order of grant of police remand is an interlocutory order as held by the Hon'ble Supreme Court in the case of Inspector of Police & Ors v. Joy Immaculate reported in 2004(3) GLR 2174 as well as as held by the learned Single Judge of this Court in the case of Gopalbhai Chaturbhai Amin v. State of Gujarat reported in 2005(4) GLR 3103. Therefore, it is requested not to entertain the present petition and / or exercise the powers under Article 227 of the Constitution of India.
4.1. It is further submitted by Shri Dabhi, learned APP that as such the cogent reasons have been given by the learned Magistrate granting remand of accused to the police custody. It is submitted that during the course of the investigation it has been found that the accused persons are not cooperating and telling the truth. It is submitted that the accused persons are not as such disclosing and/ or telling the truth about with whom the original power of attorney is. It is submitted that from the xerox of power of attorney which was alleged to have been registered before the Executive Magistrate, Surat it has been found that the said power of attorney was given to one fictitious person named Jaydeepbhai Ranchhodbhai Solanki who was identified by one Pavankumar Dularbhbhai and their identity is yet to be established and / or found out. It is submitted that allegations are very serious creating forged power of attorney of a dead person and executing the sale deed in favour of petitioner no.1 builder by the said Jaydeepbhai Solanki by using th said Power of Attorney whose identity is yet to be established and found out. It is further submitted that though the said power of attorney is alleged to have been registered before the Executive Magistrate and it bears the stamp of Executive Magistrate, Surat however, it has been found that the said power of attorney has not been registered with the office of the Executive Magistrate, Surat and forged seals are yet to be recovered. It is submitted that all throughout the petitioners have tried to scuttle investigation by initiating the proceedings one after another by winning over the original complainant who is poor lady and the petitioners have tried to see that the truth may not come out. Therefore, it is requested to dismiss the present application.
5.0. Heard the learned advocates for the respective parties at length. As stated above, the allegations against the petitioners are very serious of creating forged power of attorney of a dead person in favour of a fictitious person named one Jaydeepbhai Ranchhodbhai Solanki alleged to have been registered with the office of the Executive Magistrate, Surat with stamp and seal of office of Executive Magistrate, Surat and identified the said fictitious Jaydeepbhai Ranchhodbhai Solanki by accused person and thereafter getting the document/ sale deed executed in favour of the petitioner no.1, who is builder. As sated above, twice the petitioners have tried to see that there is no further investigation with respect to the offences alleged to have been committed by the petitioners, which are very serious in nature. Earlier after the complaint was filed and the complaint was sent for investigation under Section 156(3) of the Code of Criminal Procedure and before there was any further investigation, petitioner no.1 won over the complainant, who is poor lady and then tried to see that the complaint is withdrawn the complaint and this Court directed the investigating officer to continue with the investigation. Thereafter again the petitioners tried to quash and set aside the said complaint by submitting the application before this Court under Section 482 of the Code of Criminal Procedure and this Court dismissed the said application and directed the Investigating Officer to continue with the investigation. That thereafter, the petitioners submitted the anticipatory bail before this Court and learned Single Judge granted the same on the conditions mentioned in the order, more particularly, para 7(g), which is reproduced hereinabove. While granting the anticipatory bail to the petitioner this Court has specifically observed that despite the anticipatory bail granted, it would be open for the Investigating Officer to apply to the competent Magistrate, for police remand of the applicants and the applicants shall remain present before the learned Magistrate on the first date of hearing of such an application and on all subsequent occasions, as may be directed by the learned Magistrate and same would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. Therefore, the learned Single Judge reserved the liberty in favour of the investigating agency to pray for the police remand. That thereafter, investigating officer has submitted the application praying for police remand of the accused and making out a ground for custodial investigation of the accused, on valid reasons the learned Magistrate has granted the police remand of the accused for three days. As per the investigating officer, custodial investigation of the accused persons is required to find out the truth as main document/ original power of attorney is yet to be recovered; identity of the Jaydipbhai Ranchhodbhai Solanki in whose favour the power of attorney is executed, from whom the petitioner no.1 purchased is yet to be found out and it is reported that accused persons are not cooperating on the aforesaid even those persons who remained present before the Sub Registrar at the time of execution of the power of attorney and the sale deed are yet to be found out. Considering the facts and circumstances of the case, it cannot be said that learned Magistrate has committed any error and / or illegality in granting the police remand of the accused for three days. Merely because, the accused persons have appeared before the Investigating Officer police remand cannot be denied. It cannot be disputed that there is distinction between the custodial investigation and appearing before the Investigating Officer and giving statements.
5.1. So far as reliance placed upon the decision of this Court in the case of Jairajsinh Temubha Jadeja (supra) relied upon by the learned counsel for the petitioners is concerned, on facts the said decisions would not be applicable. In the present case as stated above, on cogent reasons and having satisfied by the learned Magistrate that there is a reason to grant police remand of the accused, learned Magistrate has passed the impugned order granting police custody of the accused persons. Even otherwise, considering the aforesaid decisions, it appears that as observed if the learned Magistrate is satisfied accused can be remanded to the police custody. In the facts and circumstances of the case, it cannot be said that the police remand has been asked to collect the evidence only. The police has right to get the information from the accused if the same is within his knowledge. If the investigating officer wants interrogation the accused so as to reach the of finding out truth, remand cannot be refused. It is to be noted that as such decision of this Court in the case of Harendra Vallabhdas Kanabar (supra) is concerned, as such the learned Single Judge has confirmed the order passed by the learned Magistrate of police remand.
5.2. Looking to the aforesaid facts and circumstances of the case; nature of serious offences alleged to have been committed by the applicants narrated hereinabvoe; investigation carried out so far by the prosecution; involvement of the present applicants and keeping in mind the reasons for getting police custody of the present applicants, the impugned order passed by the learned Magistrate granting remand of the applicants for three days is just, legal, proper and in consonance with the law, which is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India.
6.0. In view of the above and for the reasons stated, application fails and same deserves to be dismissed and is accordingly dismissed. Notice discharged. Ad-interim relief granted earlier stands vacated forthwith.
6.1. In view of dismissal of the main Special Criminal Application, no order in Criminal Miscellaneous Application No.11636 of 2011 and is accordingly dismissed.
(M.R.SHAH, J.) FURTHER ORDER At this stage, learned counsel of the petitioners has requested to continue the ad-interim relief granted earlier. For the reasons stated hereinabove and observations, prayer is rejected.
(M.R.SHAH, J.) kaushik Top