Gujarat High Court
Hetalben Maheshkumar Pavasiya vs State Of Gujarat on 15 September, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/15456/2022 ORDER DATED: 15/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15456 of 2022
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HETALBEN MAHESHKUMAR PAVASIYA
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR DHRUV K DAVE(6928) for the Respondent(s) No. 1
MR RONAK RAVAL, ASSISTANT PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 15/09/2022
ORAL ORDER
1. Heard learned Advocate Mr. Virat G. Popat on behalf of the applicant and learned APP Mr. Ronak Raval on behalf of the respondent- State. Learned Advocate Mr. Dhruv K. Dave on behalf of the first informant.
2. The applicant apprehending her arrest in connection with the FIR being C. R. No. 11196003220539 of 2022 registered with the Manjalpur Police Station, Vadodara City on 31.07.2022 for offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120(B) of the Indian Penal Code, has preferred this application praying for grant of Page 1 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 anticipatory bail.
3. It appears that vide an order dated 23.08.2022, this Court had protected the present applicant only on the ground that the applicant herein was a lady accused and whereas, this Court had inter alia directed a Senior Officer of the Police department to answer the allegations against the department as against non-registration of the FIR for a considerably long period of time. That while the protection had inured in favour of the applicant till date, whereas on the previous date of hearing a report by the concerned Deputy Commissioner of Police had also been tendered.
3.1. It also requires to be noted that vide an order dated 14.09.2022, this Court had called upon the Investigating Officer to explain a circumstance i.e. with regard to the present applicant being produced before the Investigating Officer on the 31.07.2022 as alleged by learned Advocate Mr. Dave for the first informant and whereas the applicant having been permitted to leave the Police Station premises.
3.2. This Court had also directed the Inspector of the concerned Police Station and or the Deputy Commissioner or the Joint Commissioner of Police, remain present with the CCTV footages or to explain the absence of CCTV footages in case of the same was not Page 2 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 available. Today Deputy Commissioner of Police Mr. Yashpal Jaganiya, Zone-III, Vadodara City and Police Inspector Mr. V. K. Desai, Manjalpur, are present before this Court and whereas, it is informed to this Court that since a period of 30 days is already over, as per the policy the CCTV footages are not available, it also appears that the concerned officers based upon the investigation papers do not dispute the fact that the applicant had been presented before the Police Station and whereas an undertaking under the title 'Samajyadi' is shown to this Court wherein it is mentioned that since COVID 19 test of the applicant had been carried out and since the sun had set on that day, the applicant had been permitted to leave the Police Station with an understanding that she will report on the next day i.e. on 01.08.2022 at 09:00am for further proceedings. As it appears that the applicant had not returned back to the Police Station and whereas, she had applied for grant of anticipatory bail before the learned Sessions Court., the same having been rejected, the present application is preferred. It thus clearly appears that the applicant was apprehended immediately after the FIR was registered and thereafter while a formal arrest had not taken place and in spite of the serious allegations, based upon an undertaking as above the applicant had been permitted to leave the Police Station.
3.3. Insofar as merits of the case are concerned, learned Page 3 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 Advocate Mr. Popat on behalf of the applicant would submit that the applicant was a bonafide purchaser of the property in question and whereas, she did not have any knwoledge about the fact that the property had already been purchased by the daughters of the first informant. Learned Advocate Mr. Popat would also submit that as such, the present applicant, had purchased the plot on 10.05.2016 from the heirs of the original owner and whereas she had sold the plots on 22.02.2017 to one Shrushti Developer. Learned Advocate Mr. Popat would submit that the present applicant was a partner in the said purchaser firm. Learned Advocate Mr. Popat would also submit that the land had been purchased through mediators and whereas, the said mediators had as per the normal course of business, ensured that the applicant would not meet the original sellers of the property. It is also submitted that the present applicant had done all due diligence as required, more particularly, the mediators had published a public notice in a Gujarati News Paper prior to the transaction in question and whereas, only after the Title Clearance Certificate had been obtained that the applicant had purchased the property. Learned Advocate Mr. Popat would submit that the firm of the applicant had thereafter constructed a 5 storied apartment on the property in question and whereas, the said property having been sold and whereas, till very recently i.e. in the year 2022, when the FIR had been registered, the first Page 4 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 informant had taken no action from the time the original sale deed had taken place.
3.4. Learned Advocate Mr. Popat would submit that as such the family of the first informant had knowledge about the sale deed from the year 2016 itself, more particularly, since there was a Civil Suit filed by another set of heirs of the original owner claiming right title and interest over the property in question and wherein in such Civil Suit, the daughters of the first informant i.e. the purchasers of the property had filed a counter claim which also had been rejected. Having regard to such circumstances and also considering the fact that the present applicant is a lady accused, learned Advocate Mr. Popat would request that this Court may grant anticipatory bail to the present applicant.
4. This application is vehemently opposed by learned Advocate Mr. Dhruv Dave on behalf of the first informant. Learned Advocate Mr. Dave would submit that the facts of the present case are absolutely shocking. Learned Advocate Mr. Dave would submit that as such the daughters of the first informant, had purchased the property in question from the original owner by way of registered sale deed on 14.12.1984 and whereas, thereafter, the names of daughters of the first informant had also been mutated in the revenue record and the city survey records, more Page 5 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 particularly, such names being mutated even before the purchase of the property by the present applicant.
4.1. Learned Advocate Mr. Dave would submit that the applicant in spite of the registered sale deed in form of daughters of the first informant and in spite of the names of the purchasers appearing in the revenue and city survey record, had purchased the property from heirs of the original owner of the property in spite of the fact that the property did not belong to the family of the original owner on that date. Learned Advocate Mr. Dave would submit that the title clearance, which is sought to be relied upon was an absolute sham, more particularly, since no learned Advocate worth his name would in title clearance proceedings not check up the revenue record/ city survey record which would by that time reflect the daughters of the first informant as owners of the property. Learned Advocate Mr. Dave would submit that most importantly the first informant had from year 2016 onward attempted to register an FIR against the present applicant and others and on account of the connivance of the Police department with the present applicant, from year 2016 onward the first informant could not have registered. Learned Advocate Mr. Dave would draw the attention of this Court to paragraph no. 13 of the order passed by the learned Sessions Court, Vadodara dated 10.08.2022 whereby the learned Sessions Court had rejected application Page 6 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 of the present applicant for being granted anticipatory bail and whereas, according to learned Advocate Mr. Dave, in the said paragraph, the learned Sessions Court had inter alia noted the efforts by the first informant to bring it to the notice of the concerned authorities about a fraud perpetrated, resulting in the property of the first informant being usurped by the present applicant and others.
4.2. Learned Advocate Mr. Dave would draw the attention of this Court to the dates as mentioned in the said paragraph and would submit that from year 2016 onward, numerous efforts including filing of applications before this Court had been done by the first informant and it is only after a considerable effort, that the present FIR could be registered. Learned Advocate Mr. Dave would submit that the allegations leveled in the FIR, more particularly, with regard to the transaction in question were not so unfathomable, that the Police Officers including Senior Police Officers could not appreciate the grievance of the first informant and could not direct registration of the FIR. Learned Advocate Mr. Dave would submit that the fact of no FIR having been registered from 2016 till 2022 itself would be a ground, whereby discretion may not be exercised by this Court in favour of the applicant, more particularly, considering the fact that such delay clearly reflecting the clout of the applicant in the Police department, whereby she could ensure an FIR not Page 7 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 being registered for a period of six years in spite of numerous efforts by the first informant including filing applications before this Court. Learned Advocate Mr. Dave would further submit that the present applicant, may not be granted any indulgence on account of the fact that the applicant is a lady, more particularly, considering the nature of offence and the role attributed to the present applicant. Having regard to the such submissions, learned Advocate Mr. Dave would request this Court not to entertain the present application.
5. This Application is also attempted to be opposed by learned APP Mr. Raval, more particularly, the attempted part since the learned APP Mr. Raval, is hindered by the conduct of the officers whom he is representing. Learned APP Mr. Raval would attempt to submit that from the facts it clearly appears that the applicant, had purchased a property, which was purchased and already stood in the name of daughters of the first informant and whereas, fact of the transfer had already been reflected in the revenue record even before the purchase. Learned APP Mr. Raval would submit that having regard to the same, the present applicant could not be heard to say that she did not know about the transfer of ownership. To a pointed query by this Court learned APP Mr. Raval would submit that undoubtedly, in spite of the fact that the property being of the Page 8 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 ownership of the daughters of the first informant, yet, on account of the unfortunate lethargy/ connivance of officers in question, a 5 storied building has come up on the property with impunity. As far as the aspect of the first informant being produced before the Police Station, learned APP Mr. Raval except for producing the file where the above noted 'Samajyadi' was brought to the attention of this Court could not justify in any manner the fact of the present applicant having been released by the then Investigating Officer.
5.1. Again to a pointed query by this Court, learned APP Mr. Raval would submit that while a preliminary inquiry against Senior Officers of the Police Station is underway with regard to delay in filing the FIR, but the aspect of Investigating Officer having let go of the present applicant after she was produced before the Investigating Officer, was not one of the aspects on which the proceedings were initiated. Learned APP Mr. Raval, upon instructions, would further submit that the Commissioner of Police has also on 05.09.2022 entrusted to the Deputy Commissioner of Police another preliminary inquiry against the Police Inspector concerned, who had permitted the present applicant to leave the Police Station premises and whereas, such preliminary inquiry by the Deputy Commissioner of Police is in progress.
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6. Heard learned Advocates for the respective parties and perused the documents on record as well as the investigation papers submitted by learned APP. At the outset, it would be required to be noted that vide an order dated 23.08.2022, this Court had inter alia directed the Deputy Commissioner of Police of the concerned Zone/ the Joint Commissioner of Police to submit a report as to why a delay had taken place in lodgment of the FIR and whether the delay was deliberate or not and if the delay was deliberate then what action had been taken or is proposed to be taken against the officers in question. In compliance of the said direction, a report had been submitted by Mr. Yashpal Jaganiya, Deputy Commissioner of Police Zone-III, Vadodara City, wherein while it is inter alia admitted that there had been some laxity on part of the Police officials, more particularly, in complying with an instruction, more particularly, in not registering the FIR and whereas, the Department has initiated a preliminary inquiry against all the concerned Police Inspectors and Assistant Commissioner of Polices during the period in question, and whereas, the preliminary inquiry report has been entrusted by the Police Commissioner, Vadodara City to the said Deputy Commissioner of Police.
6.1. Be that as it may, it appears that the learned Sessions Court, has elaborately gone into this aspect and whereas, before adverting to the Page 10 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 rival contentions, this Court seeks to reproduce herein below the observations of the learned Sessions Court with regard to the connivance and negligence of the Police Department, which aspect also has been prima facie accepted by the department.
Paragraph 13. "Above being the position and situation on record, even though the applicant along with the other co-accused, created the forged and fabricated documents and also managed the Title Clearance Certificate and also managed the Government departments and thereby started the construction on the plots of the present complainant. As per the arguments of the learned Advocate Mr. Shrike the role of the Police agency was also under the cloud which is narrated hereunder to put the circumstances before the higher ups of the police department.
(i) The first complaint by way of the application was given by the complainant on 02/07/2015 to the Manjalpur Police Station as well as Police Commissioner Shri.
(ii) No action was taken by the Police agency hence, complainant has approached the Hon'ble High Court of Gujarat by filing Spl. Criminal Application No. 6397/2018 wherein, Hon'ble High Court of Gujarat has directed the police agency to register the FIR as well as also ordered that if the police agency is of the view that no case is made out for the registration of the FIR then in such circumstances the petitioner be informed in writing about the same by giving reasons in brief with a period of fortnight from the date of order. The above order was passed on date 31/07/2018. Surprisingly, police agency neither lodged the FIR nor intimate the petitioner reason best known to them.
(iii) Present complainant has also approached the DGP Shri, Gujarat State on date 05/05/2017.Page 11 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022
R/CR.MA/15456/2022 ORDER DATED: 15/09/2022
(iv) Thereafter, the complainant has again approached the Police Commissioner, Vadodara in the year 2019.
(v) Thereafter, present complainant has filed the complaint before the Chief Minister and Home Minister, Gujarat State on date 20/04/2017.
(vi) The Police Commissioner, Vadodara has given the investigation to the Jt. Police Commissioner, Crime Branch by officer order No...799/2019 dated 07/01/2019 and also granted the permission to register the offence. Thereafter, Jt. Commissioner, Vadodara has collected more than 88 documents and thereby submitted the report to the Police Commissioner Shri, Vadodara on 19/10/2019 vide office order No...1295/2019. It is pertinent to note that Jt. Commissioner, Vadodara has submitted the report of more than 23 pages and clearly opined that the present applicant along with the co-accused have forged the documents and there is ample ground to register the FIR to Police Inspector, Manjalpur. The Commissioner Shri, Vadodara has also sent a notice to Dy. Commissioner of Police, Zone-III and Asstt.
Commissioner of Police, F Division and Jt. Commissioner, Crime Branch, Vadodara.
(vii) In pursuance of the above report of the Jt. Commissioner, the Police commissioner Shri Anupam Sinh Gehlot has granted the sanction and ordered to register the FIR on 07/11/2019 vide office order No...799/2019.
(viii) Thereafter, Jt. Commissioner has reminded the Police Inspector, Manjalpur to register the complain on 26/02/2019 vide office order No...407/2019.
(ix) Thereafter, Deputy Commissioner of Police has reminded the Police Inspector, Manjalpur to register the complaint on 28/02/2021 vide office order No...600/2021.
(x) Thereafter, Joint Commissioner of Police has reminded the Police Page 12 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 Inspector, Manjalpur to register the complaint on 10/03/2021 vide office order No...508/2021."
7. It appears from the above narration by the learned Sessions Court and further from the report tendered to this Court that though the first informant had attempted to have her FIR registered, to the extent of even filing applications before this Court, for a period of 6 years, the FIR could not be registered, more particularly, on account of the connivance of the Police officers in question.
7.1. In the considered opinion of this Court, this would be and ought to be enough ground not to consider the application of the present applicant for grant of anticipatory bail. The very fact that the present applicant, held such a clout in the Police Department, that even an FIR could not be registered against the applicant, for 6 years, in spite of such serious allegations, would be enough material for this Court to presume the havoc that will be caused by the present applicant by their interference in the investigation, in case she would be given the protection of pre-arrest bail. This Court can very well imagine that the present applicant having ensured that an FIR is not registered against her for last 6 years, would try all means and methods to influence the investigation and influence the witnesses and considering the same, the Page 13 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 same being one of the most relevant aspects to be considered by the Court while considering an application under Section 438, this Court would not be inclined to consider the present application.
8. Insofar as the submissions made on behalf of the applicant, it appears that while an attempt is being made to show that the applicant is a bonafide purchaser, prima facie the facts would reflect otherwise. It clearly appears that the transaction between the daughters of the first informant and the original land owner was by way of a registered sale deed and where, the fact of sale had been mutated in the revenue records/ City Survey records even prior to the present applicant purchasing the property, whereby such records reflected the names of the daughters of the first informant as owners of the property. If a Title Clearance Certificate had been given, without the said aspect being taken into consideration, the Court is definitely inclined to accept the submission of learned Advocate Mr. Dave that such Title Clearance Certificate was a sham and the present applicant could not be granted any premium on account of such a fraudulent Title Clearance Certificate.
9. The fact of the names appearing in revenue record and the transaction between the original owner and the daughters of the first Page 14 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 informant being by way of a registered sale deed, could not have been an aspect which could have been missed out by any bonafide purchaser of a property. The present applicant having purchased the property in spite of such overwhelming material to show that the sellers did not have any right, and further considering the fact that the present applicant, in spite of such material, has with impunity sold the land to a firm wherein she was a partner and the firm having constructed a property i.e. a 5 storied apartment building and having sold the apartments to purchasers, it appears that apart from the first informant, even the purchasers of the property, have been defrauded by the present applicant.
10. It clearly appears that the present applicant, is not a person, who either abides by the law or who respects the legal process and furthermore, it appears that using her clout, the applicant had influenced the Police department to such an extent that an FIR could not be filed against her for 6 long years, in the considered opinion of this Court, would be a reasonable ground of this Court to hold that the present applicant is not entitled for discretionary relief.
11. Over and above the same, the aspect, which shocks the conscience of this Court is the fact that the present applicant though had been Page 15 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 produced before the Investigating Officer after the FIR had been registered, without any reason and without any sureties, had been permitted to leave the Police Station premises only on her own undertaking that she would return back next day morning. The said aspect also clearly reflects the clout which the applicant is holding in the Police Department even as on date.
12. Having regard to the above, in the considered opinion of this Court, this would not be a fit case where this Court would exercise discretionary jurisdiction in favour of the applicant and grant pre-arrest bail to the present applicant.
13. While this Court has noted the aspects about the inquiries against the officers who were manning the Police Station from year 2016/ 2019 till date and also about the fact of a preliminary inquiry against the then Investigating Officer, who had permitted the present applicant to leave the Police Station premises and whereas, this Court fervently hopes that the officers concerned, would do their best to ensure that the presumption of this Court that the present applicant still holds clout with the department is proved wrong. With this fervent hope, the present application is rejected. Interim relief granted vide order dated 23.08.2022 Page 16 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022 R/CR.MA/15456/2022 ORDER DATED: 15/09/2022 is vacated. Rule is discharged.
(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia Page 17 of 17 Downloaded on : Mon Sep 19 20:41:36 IST 2022