Gujarat High Court
Jagdishbhai Ratilal Babariya vs State Of Gujarat on 24 June, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/CR.MA/5122/2021 ORDER DATED: 24/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5122 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 5130 of 2021
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JAGDISHBHAI RATILAL BABARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ZUBIN BHARDA for MR KISHAN H DAIYA(6929) for the Applicant(s) No. 1
MR ASHISH M DAGLI and MR KT BELADIYA for the Respondent(s) No. 1
MS MAITHILI MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 24/06/2022
COMMON ORAL ORDER
[1.0] By way of the present applications under Section 439 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the applicant has prayed for regular bail. Criminal Misc. Application No.5122 of 2021 has been filed by the applicant seeking regular bail in connection with FIR being I-CR No.317/2019 registered with Sarthana Police Station for the offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860 (for short "IPC") whereas Criminal Misc. Application No.5130 of 2021 has been filed by the applicant seeking regular bail in connection with FIR being I-CR No.12/2019 registered with CID Crime Surat Zone Police Station for the offences punishable under Sections 406, 409, 420 and 120(B) of the IPC and under Section 3 of the Gujarat Protection of Interest of Depositors Act, 2003 (for short "GPID Act").
[2.0] Initially, on 01.10.2021, the coordinate Bench of this Court vide the following order directed to release the applicant on Page 1 of 9 Downloaded on : Tue Jun 28 20:49:57 IST 2022 R/CR.MA/5122/2021 ORDER DATED: 24/06/2022 temporary bail upto 29.10.2021.
"1. RULE returnable on 29.10.2021. Learned APP Mr. LB Dabhi waives service of notice of rule on behalf of respondent-State.
2. Heard learned advocate Mr. Zubin F Bharda for the applicant, learned advocate Mr. Ashish M Dagli and learned advocate Mr. KT Beladiya for the complainant and learned APP Mr. LB Dabhi for the respondent-State.
3. Learned advocate Mr. Bharda has submitted that while the applicant was in jail on account of the efforts made outside, the applicant has convinced the complainants that if some time is available to the applicant he will be able to settle the issue to a large extent, either by proceeding at fast pace the construction of the flat and allotting the same to the complainant or can also make arrangement for repaying the amount that is invested by the complainant and the other victims respectively. Today, he places an affidavit of victims, ten in numbers, to indicate the willingness of the victims to enter into some kind of settlement so that at least their grievances can be resolved.
4. Learned advocate Mr. Beladiya appearing for 13 other victims also states that he has instructions that in case, the applicant is able to settle, then they are willing to seek for settlement with the applicant.
5. In view of the aforesaid development, the Court deems it fit to enlarge the applicant for a temporary period till 29.10.2021, from the date of his actual release, on his furnishing a personal bond of Rs.10,000/-(Rupees Ten Thousand only) to the satisfaction of the jail authority, and on a further condition that he shall surrender to the jail authorities on 29.10.2021.
6. Stand over to 29.10.2021. Learned advocates for the respective parties shall submit the developments made towards resolving the problem of the complainant."
Thereafter, on 29.10.2021, the following order was passed.
"Pursuant to order dated 01.10.2021, learned advocate for Page 2 of 9 Downloaded on : Tue Jun 28 20:49:57 IST 2022 R/CR.MA/5122/2021 ORDER DATED: 24/06/2022 the applicant has placed on record five affidavits of the victims of the offence to indicate settlement. Though on affidavit, the victims have stated about the settlement however, is not clear enough to bring on record the manner of settlement or the terms of settlement. Learned advocates for the complainant side still have a grievance that 13 witnesses whom he represent, none of them has been approved for any type of settlement. Considering the large number of victims, the efforts made by the learned advocate and the applicant indicate that some progress made towards resolving the grievance.
In view of the aforesaid, the matters are adjourned to 23.11.2021 for further progress in resolving the complaint of the victims. Before the returnable date, the applicant shall file a report in the form of affidavit giving of the details about the manner of settlement with an advanced copy to the learned advocate for the complainant. Interim protection granted earlier, is extended till then."
Thereafter, on 23.11.2021, the following order was passed.
"Stand over to 29.11.2021. To enable the applicant to file reporting form of affidavit as per order dated 29.10.2021, and also seek instruction of the applicant for depositing a cost for not complying with order dated 29.10.2021. Interim relief is extended till then."
On 13.12.2021, following order was passed.
"At the request of learned advocate Mr. Kishan Prajapati for learned advocate Mr. Kishan Daiya for the applicant the matters are kept on 23.12.2021, so as to arrive at a final settlement with the witnesses represented by learned advocate Mr. Ashish Dagli. In failure to do so, the applicant will be directed to surrender to the judicial custody. Interim relief, granted earlier, to continue till then."
Thereafter, on 24.12.2021, following order was passed.
"Today, learned advocate Mr. B.M.Mangukiya for learned advocate Mr. Kishan Daiya on behalf of the applicant assures the Court under the instructions of the applicant who is Page 3 of 9 Downloaded on : Tue Jun 28 20:49:57 IST 2022 R/CR.MA/5122/2021 ORDER DATED: 24/06/2022 present in the Court that the settlement which has proceeded thus far will continue to proceed to the satisfaction of the victims who are represented by learned advocate Mr. Ashish Dagli. For that purpose, Stand over to 07.01.2022 for reporting further process of the ongoing settlement. Interim relief, granted earlier, to continue till then."
Thereafter, on 07.01.2022, following order was passed.
"It is submitted that the parties may finalise the settlement process and some proposal would be given in writing to the victims. For that purpose, the learned Advocates appearing on record pray for time. Let the matters be listed on JANUARY 24, 2022. Till then, the interim relief of temporary bail is extended."
Thereafter, on 24.01.2022, the following order was passed.
"Mr. Ashish Dagli, learned advocate for the respondent submits that he is likely to consult his client regarding documents and affidavit filed by the petitioner. Stand over to 01/02/2022. Interim relief, if any granted earlier, to continue till then."
Thereafter, on 01.02.2022, the following order was passed.
"Upon request made by learned advocate Mr.Zubin Bharda for learned advocate Mr.Kisah Daiya for the applicant, stand over to 15.02.2022. Interim relief granted earlier to continue till the next date of hearing."
Thereafter, on 15.02.2022, the following order was passed.
"Upon request made by learned advocate Mr.Mangukiya with learned advocate Mr. Kishan Daiya for the applicant, stand over to 11.03.2022. Interim relief granted earlier to continue till then."
On 11.03.2022, the following order was passed.
Page 4 of 9 Downloaded on : Tue Jun 28 20:49:57 IST 2022R/CR.MA/5122/2021 ORDER DATED: 24/06/2022 "By consent of learned advocates for the parties, stand over to 1.4.2022. Interim relief granted earlier to continue till then."
On 01.04.2022, the following order was passed.
"Upon the request made by learned advocate Mr. Kishan Daiya, stand over to 8.4.2022. Interim relief granted earlier to continue till then."
Thereafter, on 22.04.2022, the following order was passed.
"By consent of learned advocates for the parties, stand over to 25.4.2022. Interim relief granted earlier to continue till then.
Learned advocate Mr. Zubin Bharda, upon the instructions received from learned advocate Mr. Kishan Daiya, who has received telephonic instructions from the applicant that the accused person has shown willingness to surrender. However, for abundant caution, learned advocate Mr. Bharda seeks time to place on record the undertaking of Jagdishbhai Ratilal Babariya on record stating the date on which he intends to surrender. If no such undertaking is filed on the next date of hearing, in that case the applicant is directed to surrender before 5.00 p.m. on 25.4.2022 as the applicant could not settle the dues of the complainant as promised and as recorded in the order dated 1.10.2021."
On 25.04.2022, the following order was passed.
"Learned advocate Mr. Zubin Bharda today tendered an undertaking wherein it is stated that the applicant is ready to surrender on 01.05.2022.
Considering the fact that the applicant is enjoying relief since 01.10.2021, this undertaking tendered by learned advocate Mr. Bharda is not taken on record and he is directed to file fresh undertaking by tomorrow i.e. 26.04.2022 stating that the applicant shall surrender latest by 27.04.2022 before 5:00 P.M. before concerned jail authority.
Stand over to 26.04.2022."Page 5 of 9 Downloaded on : Tue Jun 28 20:49:57 IST 2022
R/CR.MA/5122/2021 ORDER DATED: 24/06/2022 Thereafter, on 26.04.2022, the following order was passed.
"In both the Criminal Misc. Applications, learned advocate Mr. Zubin Bharda appearing for learned advocate Mr. Kishan H. Daiya for the applicant has tendered scanned copy of affidavit cum undertaking affirmed on 25.04.2022 at Surat wherein it is stated that the applicant will surrender himself before the Jail Authority at Lajpor by 27.04.2022 before 05:00 P.M. Learned advocate Mr. Bharda ensures that by tomorrow original copy of undertaking in the form of affidavit shall be submitted before the Registry of this Court. Hence, scanned copy of both the affidavits are taken on record.
In view of that, list the matter on 17.06.2022. "
The scanned copy of undertaking submitted by learned advocate Mr. Bharda was lateron replaced by the original copy of undertaking in both the applications and the Undertaking filed in Criminal Misc. Application No.5122/2021 reads as under:
"I, JAGDISHBHAI RATILAL BABARIYA, Sex: Male, Aged: 37 years, Occupation: Business, Residing at No.124, Raizone Plaza, Sarthan Jakatnaka, Varachha, Surat, mother of petitioner herein files this affidavit (Undertaking) as under:
It is submitted that I am the petitioner and FIR came to be lodge against me as CR No.I-317 of 2019 with Sarthana Police Station, Surat for the offence punishable under sec. 406 and 420 of I.P.C. I say and submitted that I am filing this undertaking before this Hon'ble court pursuant to the order dated 25.04.2022 (Coram Honourable Justice Mr. Nirzar S. Desai J.) and by that I am file this undertaking before this Court that I will surrender myself before jail authority (Surat Central Jail at Lajpore on 27.04.2022 before 5.00 p.m.) What is stated herein above is true to best of my knowledge, information belief and I believe the same to be true.
Solemnly affirmed at Surat this 25 day of April, 2022."
Page 6 of 9 Downloaded on : Tue Jun 28 20:49:57 IST 2022R/CR.MA/5122/2021 ORDER DATED: 24/06/2022 As per the aforesaid undertaking, the applicant had undertaken before this Court that he will surrender before the Surat Central Jail at Lajpore on 27.04.2022 at 5.00 pm. [3.0] It seems that despite the orders dated 22.04.2022 and 25.04.2022 passed by this Court and despite the fact that the applicant had undertaken to surrender himself before the jail authority, the applicant did not surrender himself before the Surat Central Jail, at Lajpore. However, when the matter was listed on 17.06.2022, upon the request made by the learned advocate appearing for the applicant, the matter was adjourned to today.
[4.0] Today, learned advocate Mr. Zubin Bharda appearing with learned advocate Mr. Kishan Daiya for the applicant submitted that after the undertaking was tendered before this Court, the applicant neither contacted the Advocates appearing for the applicant nor surrendered before the jail authority. Mr. Bharda submitted that despite various efforts made by him and learned advocate Mr. Daiya, they could not contact the applicant and mobile phone of the applicant is found to be switched off. It is further submitted by learned advocate Mr. Bharda that wife of the applicant was also contacted, who also did not give appropriate answer and pleaded ignorance with regard to whereabouts of the applicant and as to why the applicant has not surrendered till date.
[4.1] Learned advocate Mr. Bharda with learned advocate Mr. Daiya appearing for the applicant states that after making a statement before this Court coupled with an undertaking of the applicant and now, as the applicant has not surrendered, having found themselves helpless, they have addressed a Page 7 of 9 Downloaded on : Tue Jun 28 20:49:57 IST 2022 R/CR.MA/5122/2021 ORDER DATED: 24/06/2022 communication to the applicant through registered post A.D. on the registered address of the applicant. Learned advocates appearing for the applicant have shown their inability to appear in this matter in view of the conduct of the applicant and have sought permission of this Court to retire from the present matters.
[5.0] Learned APP Ms. Maithili Mehta appearing for the respondent - State of Gujarat submitted that despite enjoying the relief of temporary bail granted by this Court vide order dated 01.10.2021 for quite some time, the applicant not only committed breach of his own statement that he will try to settle the issue with the complainant and victims but also has committed breach of the undertaking filed by him before this Court. Learned APP has submitted that in view of such a conduct of the applicant and as the applicant is absconding since last more than one and half months, present application is required to be dismissed.
[6.0] Learned advocates Mr. Ashish Dagli and Mr. K.T. Beladiya appearing for the original complainants have submitted that by misleading the Court, the applicant has availed relief of temporary bail and thereafter, never tried to fulfill the promise or willingness that was recorded in the order dated 01.10.2021 by which the applicant was released on temporary bail. Making said submission, learned advocates appearing for the original complainants have also requested to dismiss the present applications.
[7.0] Having heard learned advocates appearing for the respective parties and considering the fact that the coordinate Bench of this Court vide order dated 01.10.2021 released the Page 8 of 9 Downloaded on : Tue Jun 28 20:49:57 IST 2022 R/CR.MA/5122/2021 ORDER DATED: 24/06/2022 applicant on temporary bail upto 29.10.2021 so as to enable the applicant to explore the possibility of settlement with the complainants and the victims. It is an admitted position on record that the applicant even after expiry of temporary bail period got extension of temporary bail from time to time by making false promises, which depicts the conduct of the applicant. The applicant has not only cheated the innocent investors but has also misled the Court first by availing temporary bail by making false promises that applicant will settle the dispute with complainants and victims and thereafter getting extension of temporary bail period on false assurances that too by way of an written undertaking before this Court.
[7.1] This Court is of a firm view that if such a conduct is tolerated, it will send a wrong signal to the society as a whole and it will encourage the criminals to first give false assurances to the Court and thereafter to get the relief extended by making further false assurances. Such practice cannot be entertained and therefore, on the ground of conduct of the applicant alone, present applications are required to be dismissed.
[8.0] In view of the aforesaid discussion, present applications are dismissed with cost, which is quantified at Rs.1,00,000/- in each of the applications.
(NIRZAR S. DESAI, J.) Ajay Page 9 of 9 Downloaded on : Tue Jun 28 20:49:57 IST 2022