Gujarat High Court
Rameshbhai Naranbhai Panchal vs State Of Gujarat on 2 August, 2023
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/MCA/1049/2022 ORDER DATED: 02/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 1049 of 2022
==========================================================
RAMESHBHAI NARANBHAI PANCHAL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR HRIDAY BUCH WITH MS AMRITA AJMERA WITH MR DAIFRAZ
HAVEWALLA(3982) for the Applicant(s) No. 1,2,3,4
MR JAY MEHTA, AGP for the Opponent(s) No. 1,2
MR JAL UNWALA, SENIOR ADVOCATE WITH MS TEJAL A VASHI(2704)
for the Opponent(s) No. 3
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 02/08/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present application has been filed under Section 12 of the Contempt of Courts Act, 1971 (for short "the Act") for the breach of directions of the Apex Court issued in the cases of Arnesh Kumar Vs. State of Bihar, (2014) 8 S.C.C. 273, D.K.Basu Vs. State of West Bengal, (1997) 1 S.C.C. 416 and Joginder Kumar Vs. State of U.P., (1994) 4 S.C.C. 260.
2. Learned advocate Mr.Buch appearing for the applicants has submitted that despite submitting the affidavit before the Court below, the respondent No.3, without prior intimation, arrested the applicants and booked him behind the bar, which amounts to contempt and same is in violation of the judgements referred in the memo Page 1 of 10 Downloaded on : Sat Sep 16 23:51:12 IST 2023 NEUTRAL CITATION C/MCA/1049/2022 ORDER DATED: 02/08/2023 undefined of the application as well as in contravention of the provisions of Section 41A of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.) as initially, while opposing the bail application submitted by the applicants, the concerned Investigating Officer at the relevant point of time in the year 2018, submitted that arrest of the applicants was not necessary and after 4 years, the succeeding Investigating Officer i.e. respondent No.3 has taken a opposite stand and arrested the accused without intimation. It is submitted that the F.I.R. being C.R.No.I-54 of 2018 came to be registered at Vyara Police Station, Tapi for the offences punishable under Sections 420, 406, 465, 467, 468, 471 and 114 of the Indian Penal Code, 1860 against the applicants alleging that the accused have forged the documents and produced them before the authority. It is submitted that apprehending arrest in connection with the said F.I.R., the applicants preferred an application for anticipatory bail under Section 438 of the Cr.P.C. being Criminal Misc. Application No.620 of 2018 before the learned Additional Sessions Judge, Tapi, where the notice was issued upon the Investigating Officer, on service of which the Investigating Officer i.e. Police Inspector, Vyara Police Station appeared before the Court and during the course of hearing, the concerned Investigating Officer viz. Mr.R.S.Patel, Page 2 of 10 Downloaded on : Sat Sep 16 23:51:12 IST 2023 NEUTRAL CITATION C/MCA/1049/2022 ORDER DATED: 02/08/2023 undefined submitted his affidavit below Exh.4, whereby it is stated that the investigation is at preliminary stage and documents are yet to be collected and on collection of those documents, it would be clear as to whether the accused are required to be arrested or not and thereafter, on prior intimation, appropriate proceedings will be initiated. It is submitted that since the concerned Investigating Officer made an endorsement on the application to the effect, the applicants withdrew the said application without prejudice to rights and contentions with a liberty to file afresh in case of necessity, on the basis of which, the Court below vide order dated 13.08.2018 disposed of the said application.
3. Learned advocate Mr.Buch has further submitted that thereafter, no investigation was put into motion and the applicants were also available for the investigation however, on or before the next date of hearing on 30.05.2022, a police officer from the concerned Police Station came at the residence of the applicants and informed that they are wanted, upon which the applicants have informed about filing of their anticipatory bail application and the affidavit filed therein but the police officer did not consider the request and asked them to come to the Police Station for recording their Page 3 of 10 Downloaded on : Sat Sep 16 23:51:12 IST 2023 NEUTRAL CITATION C/MCA/1049/2022 ORDER DATED: 02/08/2023 undefined statements. It is submitted that the applicants have also represented their case before the Police Inspector of Vyara Police Station, Mr.K.B.Zala. It is further submitted that the learned advocate, who had appeared in the earlier bail application of the applicants, had also intimated the respondent No.3 about the earlier proceedings, including the affidavit submitted by the previous Police Inspector in the case and the order passed by the Court below and requested the respondent No.3 to permit him to tender the documents, which would make the picture clear however, the concerned advocate was told to leave the Police Station. Thus, learned advocate Mr.Buch has submitted that the applicants are arrested despite the aforesaid assurance given by the Police Inspector i.e. respondent No.3 and hence, the proceedings under the Act may be initiated against him for violation of the guidelines issued by the Apex Court in the case of Arnesh Kumar(supra).
4. Finally, learned advocate Mr.Buch has invited attention of this Court to the observations made in the order dated 10.06.2022 passed by the learned Additional Sessions Judge, Vyara, Dist.Tapi, wherein and whereby the applicants are released on bail under the provisions of Section 439 of the Cr.P.C. and more particularly, in paragraph No.3, the directions are issued to Page 4 of 10 Downloaded on : Sat Sep 16 23:51:12 IST 2023 NEUTRAL CITATION C/MCA/1049/2022 ORDER DATED: 02/08/2023 undefined initiate criminal contempt proceedings against the respondent No.3 for violating the guidelines issued in the cases of Joginder Kumar (supra) as well as in D.K.Basu (supra).
5. In response to the aforesaid submissions, learned senior advocate Mr.Unwala appearing for the respondent No.3 has submitted that the present application is not required to be entertained as the law enunciated by the Apex Court in the cases of Arnesh Kumar, D.K.Basu and Joginder Kumar will not apply to the facts of the present case since the applicants are embroiled in serious offences as mentioned hereinabove more particularly, under Section 467 of the IPC, which invites punishment of life or 10 years hence, there was no requirement of issuing any notice under Section 41A of the Cr.P.C. It is submitted that after initial affidavit was filed in the year 2018, the applicants were arrested in the year 2022 i.e. on 30.05.2022 at around 21:45 hrs and same was conveyed to the relatives of the accused Nos.1 to 4 more particularly, Manishbhai Rameshbhai Panchal, who is nephew of the above accused No.3 and son of applicant Mo.1. It is submitted that accordingly, the charge-sheet against the applicants is already filed in 2019. It is submitted that there is no breach of any of the conditions or directions issued by the Apex Court in the case of D.K.Basu (supra) and there Page 5 of 10 Downloaded on : Sat Sep 16 23:51:12 IST 2023 NEUTRAL CITATION C/MCA/1049/2022 ORDER DATED: 02/08/2023 undefined is no willful and deliberate disobedience of the directions issued passed by the Apex Court. He has submitted that after the order was passed in anticipatory bail on 26.01.2019, further investigation was undertaken and the Investigating Officer has filed the charge-sheet on 18.04.2019 being charge-sheet No.20 of 2019 and the same was submitted before the competent Court of law and at that time, the applicants were shown as absconders in Column No.2 in the charge-sheet. It is submitted that the respondent No.3 was posted at Vyara Police Station and had taken charge of Police Station on 24.04.2022 and since the applicants were shown as absconding accused in connection with the aforesaid F.I.R., upon the drive initiated by the office of the Inspector General of Police, Surat Range, a special team was constituted to arrest such absconding accused and accordingly, they were apprehended on 30.05.2022. It is thus, submitted that since almost 3 years, the applicants were shown as absconding and thereafter, undertaken necessary investigation since their complicity was prima facie found in the offence, they were arrested and subsequently, released on regular bail. He has submitted that so far as direction issued vide order dated 10.06.2022 passed by the learned Additional Sessions Judge, Vyara, Dist.Tapi while releasing the applicants on bail, of initiation of criminal contempt proceedings is Page 6 of 10 Downloaded on : Sat Sep 16 23:51:12 IST 2023 NEUTRAL CITATION C/MCA/1049/2022 ORDER DATED: 02/08/2023 undefined concerned, as per his information, the Registry of this Court has not received any intimation from the Sessions Court.
6. We have heard the learned advocates for the respective parties and also perused the documents as pointed out by them.
7. The facts, as narrated hereinabove, suggest that the present application is exclusively premised on the affidavit filed by the Police Inspector, Vyara Police Station on 13.08.2018 below Exh.4 by the concerned Investigating Officer Mr.R.S.Patel in Criminal Misc. Application No.620 of 2018 filed before the learned Additional Session Judge, Tapi, wherein at that stage, a statement was made as under:
"In connection with the concerned offence presently primary investigation is going on and necessary documents are yet required to be procured and after the same are procured, whether the accused are required to be arrested or not and after such ascertainment, the accused will be informed accordingly and necessary action will be taken."
8. In view of the aforesaid affidavit, Criminal Misc. Application was disposed of.
9. It is also not in dispute that after a period of almost 4 years, the applicants were arrested on 30.05.2022 in the offences punishable under Sections 420, 406, 465, 467, 468, 471 and 114 of Page 7 of 10 Downloaded on : Sat Sep 16 23:51:12 IST 2023 NEUTRAL CITATION C/MCA/1049/2022 ORDER DATED: 02/08/2023 undefined the Indian Penal Code, 1860. It is the case of the applicants that their arrest was in violation of guidelines issued by the Apex Court in the cases of Arnesh Kumar, D.K.Basu and Joginder Kumar (supra) since no prior intimation was given to the applicants before making their arrest as per the provision of Section 41(1)(b) of the Cr.P.C. In the affidavit filed by the respondent No.3, it appears that Investigating Officer filed the charge-sheet on 18.04.2019 being charge-sheet No.20 of 2019, which was submitted to the competent Court of law. In such charge-sheet, the applicants were shown as absconders in Column No.2. The Court has registered the same as CC No. 477 of 2019 and the case was pending for its adjudication before the learned Chief Judicial Magistrate, Vyara. The respondent No.3 was posted at Vyara Police Station and had taken charge of Police Station on 24.04.2022. Thus, when the affidavit was filed on 13.08.2018, the respondent No.3 was not posted as Police Inspector and it was one Mr.R.S.Patel, who is not made a party respondent.
10. Be that as it may. The offences, for which the applicants are charged, invite punishment of life or 10 years in the case of Arnesh Kumar (supra), the Apex Court has clarified for issuing the notice to the accused before making arrest as per the provisions of Section 41(1)(b) of the Page 8 of 10 Downloaded on : Sat Sep 16 23:51:12 IST 2023 NEUTRAL CITATION C/MCA/1049/2022 ORDER DATED: 02/08/2023 undefined Cr.P.C., wherein the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine.
11. In the present case, the offence of Section 467 of the IPC, for which the applicants are charged, describes punishment of life as well as 10 years and it was not required for the Investigating Officer to issue any notice before affecting their arrest. It is not the case of the applicants that after the affidavit dated 13.08.2018 filed by the concerned Police Inspector Mr.R.S.Patel, they were immediately arrested. In fact, after the detailed investigation undertaken and charge-sheet was filed, the applicants have been arrested after a period of 4 years on 30.05.2022 and accordingly, their relatives were conveyed about their arrest.
12. Under the circumstances, we do not find that the respondent Nos.2 and 3 have committed any willful and deliberate violation of the directions issued by the Apex Court in the cases of D.K.Basu, Arnesh Kumar and Joginder Kumar (supra). It is also interesting to note that while dealing with the application of regular bail, by the order dated 10.06.2022 the learned Additional Sessions Judge, Vyara, Dist.Tapi has observed with regard to initiation of criminal Page 9 of 10 Downloaded on : Sat Sep 16 23:51:12 IST 2023 NEUTRAL CITATION C/MCA/1049/2022 ORDER DATED: 02/08/2023 undefined contempt proceedings against the concerned officers, as it was found that they had misused the powers conferred to them and they were issued notice under Section 41 of the Cr.P.C. and accordingly, learned Additional Sessions Judge had directed that a copy of the said order to be forwarded to the Registrar General of this Court however, it appears that no such copy has been sent and no proceedings are initiated against any of the Police officers.
13. In light of the aforesaid analysis of the facts, we do not find that the respondent No.3 has committed any violation of law enunciated by the Apex Court in the aforementioned cases and they have acted in willful and deliberate violation of law.
14. Under the circumstances, the present contempt application is rejected. The contempt proceedings are closed.
Sd/-
(A. S. SUPEHIA, J) Sd/-
(M. R. MENGDEY,J) NVMEWADA/35 Page 10 of 10 Downloaded on : Sat Sep 16 23:51:12 IST 2023