Gujarat High Court
Mohammad Ismail @ Sajju Gotilal S/O ... vs State Of Gujarat on 7 June, 2024
NEUTRAL CITATION
R/SCR.A/6544/2024 ORDER DATED: 07/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6544 of 2024
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MOHAMMAD ISMAIL @ SAJJU GOTILAL S/O MOHAMMAD HANIF SHAIKH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.ZUBIN BHARDA on behalf of RAFIK LOKHANDWALA(5590) for the
Applicant(s) No. 1
for the Respondent(s) No. 2
MS.A.V.APTEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 07/06/2024
ORAL ORDER
1. By way of filing this petition the petition has challenged the judgment and order dated 02.06.2024 passed by the learned Chief Additional Magistrate, Metropolitan Court No. 19, Ahmedabad granting police remand to the accused from 02.06.2024 to 10.06.2024 in connection with the offence being I-Cr.No.11191011240098 registered with DCB Police Station, Ahmedabad for the offence punishable under section 406, 420, 465, 467, 468, 471, 384, 120B of IPC.
2. It is the case of the petitioner that petitioner was arraigned as accused in three FIRs out of which two are Page 1 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024 NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined with DCB Police Station, Ahmedabad and one is with Vejalpur Police Station.
2.1. First FIR being No. 11191011240098 registered on 16.05.2024 by one Abdulsalam Sirajuddin Mansuri against the present petitioner and one more accused namely Tarang Rohitbhai Dave for the offence punishable under section 406, 420, 465, 467, 468, 471, 384, 120B of IPC alleging that on the basis of forged Power of Attorney the sale deed came to be executed being No. 5999/2018 on 26.07.2018 for the land situated at village Gyaspur being Block No. 247 B/2 paiki 1350 sq.mtrs. The petitioner was arrested by the Investigating Officer on 16.05.2024 and was produced before the learned Additional Chief Judicial Magistrate court no.11, Ahmedabad on 17.05.2024 and the remand was sought for 14days. Learned Magistrate has granted police remand up to 24.05.2024 and again he was produced and further remand was sought and the learned Magistrate has granted remand till 25.05.2024. 2.2. Another FIR came to be registered before the Vejalpur Police Station, Ahmedabad City on 22.05.2024 for the offence punishable under section 406, 420, 384 Page 2 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024 NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined and 114 of IPC being I-Cr.No.11191028240288 by Salimbhai Habibbhai Meman against the four accused persons wherein, the petitioner was named as accused no.1, accused no.2 is Naushad Zakiyuddin Ranguni, accused no.3 is Kayum Mirza and accused no.4 Fazalmohammad Jigar Makrani, alleging that for land bearing survey no. 244 situated at Vyaspur Bhattha Vejalpur, forged banakhat was created and tried to put title in cloud and for cancellation of the banakhat the amount of Rs.2crores were demanded. The petitioner was arrested in connection with the FIR registered at Vejalpur Police Station and thereafter, police remand was sought up to 01.06.2024 and then he was sent to police custody on 01.06.2024.
2.3. Thereafter, one more offence was registered against the present petitioner on 24.05.2024 before the DCB Police Station being I-Cr.No. 11191011240102 for the offences punishable under sections 406, 420, 465, 467, 468, 471, 384, 120B of IPC against the present petitioner along with two other accused namely Tarang Rohitbhai Dave and Niranjan Himmatlal Patel by the complainant namely Rafiyuddin Abdulkadar Sheikh Page 3 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024 NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined alleging that on the basis of forged Power of Attorney, sale deed was executed on 26.07.2018 and to settle the dispute, huge amount was asked for wherein, the present petitioner came to be arrested and was produced before the learned Magistrate on 02.06.2024 and thereafter, police remand was sought for 14 days which was granted by the learned Magistrate till 10.06.2024 upto 15:00 hours which is the subject matter of challenge before this Court.
3. Heard learned advocate Mr.Zubin Bharda for the petitioner and learned APP Ms.A.V.Patel for the State. 3.1. Learned advocate Mr.Bharda has submitted that granting the police remand vide impugned order dated 02.06.2024 is illegal and improper as petitioner was already on the remand in connection with the FIR No. I- Cr.No.11191011240098 registered with DCB Police Station, Ahmedabad lodged against him on 16.05.2024 upto 24.05.2024 and on 24.05.2024 the present offence was registered with the same police station. However, instead of showing the arrest in the instant FIR, the arrest was shown on 01.06.2024 and he was produced before the learned Magistrate on 02.06.2024. Page 4 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024
NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined 3.2. Learned advocate Mr.Bharda submits that with ulterior motive, the Investigating Officer is registering FIR against the present petitioner one after another and seeking remand in different cases though all the cases are arising out of the same transaction. 3.3. Learned advocate Mr.Bharda submits that as due to the remand, right of seeking bail is frustrated, therefore, the impugned order deserves to be quashed and set aside.
4. Learned APP Ms.A.V.Patel submits that as number of antecedents are reported against the present applicant, learned trial court has rightly handed over custody of the present petitioner to the police upto 10.06.2024 and thereby, no illegality has been committed. Therefore, the present petition requires to be dismissed.
5. Considering the submissions made by the learned advocate for the respective parties, it appears that the present petitioner is having number of antecedents reported with different police stations. Details of these antecedents are mentioned herein below:
Sr No FIR No. Offence under Police
section Station
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NEUTRAL CITATION
R/SCR.A/6544/2024 ORDER DATED: 07/06/2024
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1. 123/2010 143, 148, 447, Aslali Police
188, 506(2)of IPC Station
2. 128/2010 406, 420, 465, Aslali Police
467, 468, 471, Station
120B of IPC
3. 99/2011 406, 420 of IPC Aslali Police
Station
4. 214/2012 307, 323, 504, Aslali Police
506(2), 114 IPC Station
and 135(1) of the
G.P.Act
5. 138/2011 147, 447, 149, Sarkhej Police
506(2), 504 and Station
114 of IPC
6. 84/2012 143, 447, 294(B) Sarkhej Police
of IPC and 25(a) Station
(1)(b)
7. 3026/2014 323, 294(b), Vejalpur
506(2), 114 of IPC Police Station
8. 11/2018 380, 465, 467, Karanj Police
468, 471, 120(B) Station
of IPC
6. During the investigation of the first offence, in the remand report, it was submitted by the Investigating Officer that 6 stamp paper franking were kept with the present applicant and has used one of the stamp paper franking in the offence registered with the DCB Police Station being I-Cr.No.11191011240098. It is submitted by the Investigating Officer that police remand is required to be granted to inquire with regard to the use Page 6 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024 NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined of remaining five franking stamp papers. It is further submitted that search which was carried out at the residential premises as well as office, 70 different sale deed files were seized and forged Power of Attorney from different persons along with banakhat and declaration of cancellation as well as samjuti karar were seized. The custodial interrogation was called for to get the details of all these filed and deeds. 6.1. It is further stated in the application preferred for the remand that four other accused names were revealed and in that line also, investigation is required to be carried out and for that, the accused is required to be sent to police custody. As the applicant and the co- accused namely Tarang Dave has committed various offences and against Tarang Dave four antecedents with regard to forging the documents were reported, detailed investigation is required to be carried out and therefore, the remand was sought which was granted upto 24.05.2024 and further extended for one day i.e upto 25.05.2024.
6.2. During the investigation, another offence was registered with Vejalpur Police Station and therefore, Page 7 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024 NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined the petitioner was arrested in connection with the offence registered at Vejalpur Police Station and then he was sent to police custody from 23.05.2024 to 01.06.2024. Thereafter, present FIR was registered with the DCB Police Stationb being Cr.No.I-Cr.No. 11191011240102 wherein also, accused was arrested on and remand was sought on 02.06.2024. The report which was submitted by the Investigating Officer reflects that one other accused namely Mr.Yogen Shah is found to have been involved in the offence, however, the present petitioner has not disclosed the correct address and the contact details of said Yogen Shah. In addition to that, the computers which were used to prepare these forged documents is required to be seized. This being an economical offence, was required to be investigated in detail.
6.3. It is further stated in the report that during the interrogation it reveals that original copy of the forged documents where destroyed and were brunt in the furnace (bhatti) which is used in the hotel and in that light also, the police officer stated that investigation is necessary.
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7. Learned Magistrate Court, after giving reason in detail, has granted the remand of the petitioner upto 10.06.2024 till 15:00hours.
8. At this stage, section 167 of Cr.P.C is required to be re-
looked, which is reproduced herein below:
S.167 Procedure when investigation cannot be completed in twenty four hours:
(1)Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-
founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction;
Provided that--(
a)the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the Page 9 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024 NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-Section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
2A. Notwithstanding anything contained in Sub-Section (1) or Sub- Section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the Page 10 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024 NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined aggregate; and on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this Sub- Section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to Sub-Section (2); Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be. (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under Sub-Section (5), the Sessions Judge may, if Page 11 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024 NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under Sub-Section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
9. Considering the above provisions, which provides that for the case where investigation cannot be completed within 24 hours, fixed by section 57, and the police requires more time to investigate in such case the accused is required to be produced before the Magistrate and Magistrate is given discretion to detain accused either in police custody or in judicial custody. Once the offence is disclosed, then it is right of police or Investigation Officer to investigate such offence and further it is discretion of the Investigating Officer to adopt the mode of investigation. The right of investigation agency to investigate the offence is a statutory right. Thus, the Investigating Officer is empowered with the provision of law to investigate thoroughly. If the investigation is not allowed to be made thoroughly, in that event, the court would not be in a position to arrive at a just conclusion, Page 12 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024 NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined
10. In view of this statutory right of investigating agency investigation of the matter cannot be curtailed. Moreover, the petitioner is a history sheeter and in connivance with the co-accused he is in a habit of creating forged documents and to put title in cloud and thereafter, demanding money to settle the dispute. Police custody given for interrogation to know the hideouts and whereabouts of absconding accused, recovery of the forged deeds cannot be said to be improper. The submission that similar offences are registered one after another is also required to be rejected on the ground that all the offences were registered by the different complainant for different transactions. As the police remand was stated to be granted in the earlier offence, registration with DCB Police station on 25.05.2024 however, during that period another Investigating Officer has taken petitioner into custody on 22.05.2024 and sought remand in different offence. Thereafter, on registration of other FIR on 24.05.2024 police remand was sought on 02.06.2024 cannot be said to be illegal as due to the registration in another FIR, police has sought custody for thorough Page 13 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024 NEUTRAL CITATION R/SCR.A/6544/2024 ORDER DATED: 07/06/2024 undefined investigation.
11. In view of the above, this Court does not find any illegality or perversity in the impugned order and therefore, petition is lack of merits and the same is required to be dismissed.
12. Resultantly, this petition is dismissed. The judgment and order dated 02.06.2024 passed by the learned Chief Additional Magistrate, Metropolitan Court No. 19, Ahmedabad granting police remand to the petitioner from 02.06.2024 to 10.06.2024 in connection with the offence being I-Cr.No.11191011240098 registered with DCB Police Station,Ahmedabad is hereby confirmed.
13. The observations made herein above are confined to the merits of the present case.
(M. K. THAKKER,J) ARCHANA S. PILLAI Page 14 of 14 Downloaded on : Fri Jun 07 21:17:06 IST 2024