Gujarat High Court
Pintuben Yogeshbhai Chotani vs State Of Gujarat on 6 October, 2021
Author: N.V.Anjaria
Bench: N.V.Anjaria, A. P. Thaker
R/SCR.A/9554/2021 ORDER DATED: 06/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9554 of 2021
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PINTUBEN YOGESHBHAI CHOTANI
Versus
STATE OF GUJARAT
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Appearance:
MR GIRISH M DAS(2323) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR. MANAN MEHTA, APP(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE DR. JUSTICE A. P. THAKER
Date : 06/10/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) When this petition was first listed on 27.9.2021 and the court was moved, following order was passed.
"Stand over to 1.10.2021.
In the meantime, learned Additional Public Prosecutor Mr. Manan Mehta may take instructions and apprise the court about the compliant made in this petition."
1.1 The petition appeared on 1.10.2021. Learned Additional Public Prosecutor Mr.Manan Mehta on that day produced the report of the Investigating Officer- Police Inspector, Cyber Crime Police Station, Shahibaug, Ahmedabad City and the relevant papers of the investigation including the copy of the remand warrant issued by the learned Additional Chief Metropolitan Magistrate, Court No.1, Ahmedabad showing that the petitioner was an accused and was remanded to the police custody.
Page 1 of 7 Downloaded on : Sun Jan 16 21:44:25 IST 2022R/SCR.A/9554/2021 ORDER DATED: 06/10/2021 1.2 The petition was listed next on 4.10.2021, on which date, the board was placed before the Co-ordinate Bench as Bench was not available.
1.3 Today again we heard learned advocate Mr.G.M.Das for the petitioner who continued his submissions, and also heard learned Additional Public Prosecutor.
2. By filing this petition what is prayed by the petitioner is to issue writ of habeas corpus directing the respondent No.2 - Police Inspector, Cyber Crime Police Station, Shahibaug, Ahmedabad to produce the corpus before the Court. While the corpus is not joined as party respondent, the petitioner described himself as wife of Yogesh Muljibhai Chothani whose production was sought in the petition as above.
3. As per the averments made in the petition, on 22.9.2021 in the morning hours around 4:00 a.m., three Police Officers from Cyber Crime Police Station, Shahibaug, came at the residence of the petitioner, the other Officers stood at the main gate and all of them took the husband of the petitioner in the police vehicle. It was stated that husband of the petitioner was abducted instantaneously without disclosing commission of any offence by her husband.
3.1 In paragraph No.4 of the petition, the petitioner further averred that after the above incident on the same date, in the evening on 22.9.2021, a call was received from the landline number to the mobile phone of the petitioner wife from the Cyber Crime Police Station, in which the Police Officer of the Page 2 of 7 Downloaded on : Sun Jan 16 21:44:25 IST 2022 R/SCR.A/9554/2021 ORDER DATED: 06/10/2021 Cyber Crime told the petitioner that her husband was taken to the Police Station in connection with an inquiry of a Company, and that the Police Officer told the petitioner to send a pair of wearing cloths for her husband.
3.2 In paragraph No.5, it was stated by the petitioner- wife, "On 23.9.2021 at evening 7:50 p.m. again husband call the petitioner and informed that one Raajbhai has deposited Rs. 3,00,000/- (Rupees Three Lakhs) in account of company namely "Walmart" and therefore on such transactions the police officer is conducting inquiry and in connection with that inquiry the husband of the petitioner is confined to police station."
4. Learned Additional Public Prosecutor responding to the order dated 27.9.2021 of the Court produced a report, investigation papers and the remand warrant together with the copy of the First Information Report No.11191067210110 dated 4.9.2021. The F.I.R. is filed by the complainant named Dilipgiri Jivagiri Gosai son of Jivagiri Gosai. In the First Information Report name of the husband of the petitioner figures in respect of the offences. The offences alleged are under Sections 406, 420, 120B of the Indian Penal Code, 1860 as well as under
Section 66D of the Information Technology Act.
4.1 As per the First Information Report, amount of Rs.3,00,000/- was deposited by one Rajbhai in the account of one Walmart Company for the purpose of investigation at the instance of the accused persons, that the said account was stated to have been open by the accused persons including the husband of the petitioner and that the offences were alleged in connection of the said deposit and the transaction. Learned advocate for the petitioner submitted that before arresting the husband of the petitioner any notice was not issued by the Police Page 3 of 7 Downloaded on : Sun Jan 16 21:44:25 IST 2022 R/SCR.A/9554/2021 ORDER DATED: 06/10/2021 Officers under Section 41A of the Code of Criminal Procedure, and in absence of that arrest was illegal.
4.2 At the outset it was sought to be submitted by learned advocate for the petitioner that it was not possible for him to conduct the case in absence of copy of First Information Report, though learned advocate for the petitioner hastened to fairly add that he had kachha copy of the First Information Report. It was next submitted that the offences as stated in the First Information Report were not made out against the husband of the petitioner.
4.3 Learned advocate for the petitioner relied on decisions of the Supreme Court in President of India Vs. Madhu Limaye, [(1969) 1 SCC 292] as also in the case of Arnesh Kumar Vs. State of Bihar, [(2014) 8 SCC 273], trying to support his submissions. He alleged that there was breach of Article 22 (1) of the Constitution. Learned advocate for the petitioner then proceeded to make submissions about legality of the remand, that the remand was not necessary and the remand order was passed in routine manner. Based on all these aspects, it was submitted that the custody of the husband of the petitioner with the police was unlawful.
4.4 On the other hand, learned Additional Public Prosecutor relied on the facts mentioned in the investigation report and reflected in the investigation papers including factum of the remand of the accused- the corpus and further development that the husband of the petitioner had already applied for grant of bail before the competent court.Page 4 of 7 Downloaded on : Sun Jan 16 21:44:25 IST 2022
R/SCR.A/9554/2021 ORDER DATED: 06/10/2021
5. Having considered the facts of the case and further having heard the submissions of learned advocates appearing for the parties, we notice certain admitted facts. Firstly, the husband of the petitioner is arraigned in the First Information Report. As per the remand warrant dated 1.10.2021, he was remanded to the police custody. The remand has now been over and presently the accused is in judicial custody. He has been facing the offences as per the First Information Report. It was not disputed that the bail application of the husband of the petitioner is also pending.
5.1 While the above are the factual developments, it could be readily noticed from the investigation papers produced before us that when the husband of the petitioner was arrested on 22.9.2021, the petitioner wife was intimated about the arrest by the competent police authority from the Cyber Crime Police Station, Shahibaug, Ahmedabad and that the husband informed wife about his arrest on the same day. This is rather admitted by the petitioner in his averments in the petition in paragraph No.4, 5 and 6, as already noted above.
5.2 It is further revealed that the accused was thereafter produced before the learned Additional Chief Metropolitan Magistrate, Court No.11, Gheekanta, Ahmedabad, city on 23.9.2021 which was within the requisite duration of 24 hours. The remand was prayed for and came to be granted as above which were upto 3:00 p.m. till 1.10.2021.
5.3 There is further admission on part of the petitioner that on 23.9.2021 in the evening around 7:50 p.m., husband of the petitioner called her and informed that Rajbhai deposited Page 5 of 7 Downloaded on : Sun Jan 16 21:44:25 IST 2022 R/SCR.A/9554/2021 ORDER DATED: 06/10/2021 Rs.3,00,000/- and in connection of such transaction Police Officers was conducting inquiry against him.
5.4 It is also given out that the police had facilitate the conversation between the petitioner and her husband. Not only that the petitioner went to the Cyber Crime, Police Station, Shahibaug, Ahmedabad on 24.9.2021 to personally meet her husband and she was permitted to converse and they both had a meeting. The petitioner thus, was well aware about the arranging of her husband and his arrest in respect of the offences. The report further says that the police has been arranging the talks between the petitioner and her husband time to time.
6. Learned advocate for the petitioner made submissions that the offences alleged in the F.I.R. are not made out against the husband of the petitioner, that the remand was not legal etc., however all these submissions are not germane to the jurisdiction the Court exercises in the present petition.
6.1 We find on the basis of all the above stated facts and events that the custody of the petitioner with the police authorities is lawful. It is in connection with and pursuant to the First Information Report against the husband of the petitioner. He is an accused for the offences alleged.
7. No case is made out to exercise the habeas corpus jurisdiction. No element of unlawful confinement of petitioner's husband could be noticed at any stage. The petition is dismissed.
(N.V.ANJARIA, J) Page 6 of 7 Downloaded on : Sun Jan 16 21:44:25 IST 2022 R/SCR.A/9554/2021 ORDER DATED: 06/10/2021 (DR. A. P. THAKER, J) Manshi Page 7 of 7 Downloaded on : Sun Jan 16 21:44:25 IST 2022