Gujarat High Court
Mangiram Gangaram Mali vs State Of Gujarat on 10 June, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/7499/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7499 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 7520 of 2018
==========================================================
MANGIRAM GANGARAM MALI
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR BB NAYAK, SR. ADVOCATE, MR VIRAL M PANDYA(5257) for the Applicant(s) No. 1
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 2
PRANAY V SHAH(8828) for the Respondent(s) No. 2
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/06/2019
COMMON ORAL ORDER
Rule. Learned APP waives service of rule for the respondent-State.
1. Since, both these applications arise out of the same FIR being I-C.R. No. I-C.R. No. 210/2017, registered with Krushnanagar Police Station, Ahmedabad, for the offence punishable under Sections 406, 420, 467, 468, 471 and 114 of the Indian Penal Code, 1860, they are heard together and disposed off by this common order.
2. The applicant in both the matters is the original complainant, who has lodged the aforesaid FIR and who is aggrieved by the grant of regular bail to the original accused No. 1-Gangaram Hemtaji Mali and accused No. 2-Kamlesh Mali, respondents, therein.
3. The applicant has challenged the legality, validity and propriety of the order passed by the learned Addl. Sessions Judge, City Civil & Sessions Court, Ahmedabad, Dated: 10.04.2018, in Criminal Misc.
Page 1 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019R/CR.MA/7499/2018 ORDER Application Nos. 2251 & 2250 of 2018, whereby, he granted regular bail under Section 439 of the Code of Criminal Procedure, 1973 ('the Code', in brief) to both the accused.
3.1 It is the grievance on the part of the applicant that original accused No.2-Kamlesh was the power-of-attorney (in short, 'POA') holder, who, in connivance with other co-accused, sold the land bearing Survey No. 212/1/2, admeasuring 0-23-27 sq.mts., situated at Mauje: Saijpur Bogha, Asarva, Ahmedabad (in short, 'the said land'), to the co- accused No.3-Ashok Mali, which belonged to the present applicant and two other partners of his, on the basis of the false and fabricated POA, by putting the false thumb impression and signature of the original complainant on the said POA. According to the applicant, the said land is having the market value of about Rs.5/- to Rs.6/- crores, at present.
3.2 It is, further, his grievance that he being one of the co-owners of the said land, in the year 2016, when checked the status of the said land online, he found that the same has been illegally transferred in the name of one Shri Ashok Mali, i.e. the original accused No.3, and therefore, he started gathering the necessary information and documents.
3.3 He, therefore, made a complaint to the PI, Krushnanagar Police Station, which disclosed the commission of a cognizable offence. The matter was, then, referred to the Special Investigation Team Page 2 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER constituted, particularly, for revealing the land scams. However, since, no steps were taken by the police, the applicant was constrained to approach this Court, requesting for registration of an FIR by way of Special Criminal Application No. 8912/2016, relying on the decision in the case of 'LALITA KUMARI V. STATE OF UTTAR PRADESH AND OTHERS', (2014) 2 SCC 1. This was disposed off, by this Court (Coram: Mr. J.B. Pardiwala, J.) vide order dated 22.11.2016. According to the applicant, despite the aforesaid order, the PI of the concerned police station did not register the FIR and instead gave an opinion that no case is made out to register the FIR, as the dispute between the parties is essentially of civil nature. The applicant, therefore, approached this Court, once again, by way of Special Criminal Application No. 1722 of 2017, where, the Court directed the PI of the Krushnanagar Police Station to collect the original power-of- attorney and to obtain the specimen signatures of the accused and sent the same to the FSL for obtaining the opinion of the hand-writing expert. Nothing was done, even after such a specific order and instead a report was filed by the police that they are unable to trace the POA, allegedly used in committing the offence.
3.4 The applicant, therefore, again needed to approach this Court by way of Criminal Misc. Application No. 14634/2017 in Special Criminal Application No. 1722/2017, where, the Court on 27.07.2017 observed that it was not satisfied with the affidavit filed by the IO concerned and the Dy.
Commissioner of Police, Zone-4, Ahmedabad, was Page 3 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER
directed to look into the matter and to comply with the order of this Court passed in Special Criminal Application No. 1722/2017. Dy. Commissioner of Police, Zone-4, Ahmedabad, then, directed the PI, Krushnanagar Police Station to register the FIR.
3.5 It is the grievance of the applicant that thrice he needed to approach this Court for registration of the FIR and the same was registered, only after the intervention of this Court. But, the false and fabricated POA, which is allegedly executed by the accused persons to transfer the land in question in favour of accused No.3, has not been obtained by the police, till date.
3.6 It is the say of the applicant that the anticipatory bail application of both the accused had been rejected and later on, they had preferred Special Criminal Application Nos. 7361/2017 and 7640 of 2017 for quashment of the aforesaid FIR. However, both the applications were disposed off, by this Court vide common order dated 20.12.2017 and thereby, the protection granted to them also came to an end. It is, further, his say that the Notary Public, Shri Ashwin Modi, who has also played a role in commission of the alleged offence, his application for anticipatory bail was also rejected by the Sessions Court, whereas, his anticipatory bail application before this Court was withdrawn.
3.7 It is his grievance that accused No.3-Ashok Mali had been granted anticipatory bail by the Page 4 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER
Sessions Court by a non-speaking order, against which a challenge was made by way of Criminal Misc. Application No. 22857/2017. It is, further, his grievance that the accused were not arrested for a long time, and therefore, the applicant was needed to make an application for transfer of investigation to some higher officer and thereafter, the respondents- accused came to be arrested on 02.04.2018 and were produced before the learned Chief Metropolitan Magistrate, where, police sought custody of the accused for five days. However, the learned Presiding Officer rejected the same by a non-speaking order. It is, further, his say that he had preferred revision against the same before the Sessions Court, which also came to be rejected. In the meantime, the accused made application for regular bail being Criminal Misc. Application Nos. 2251 & 2250 of 2018, which came to be allowed by the learned Addl. Sessions Judge, City Civil & Sessions Court, Ahmedabad, vide order dated 10.04.2018. Therefore, the present application.
4. This Court has heard, at length, the learned Advocates on both the sides and has also taken into consideration, the detailed order passed by the trial Court, while granting regular bail to both the accused-respondents, herein.
4.1 At the outset, the law on the cancellation of bail shall have to be taken into account by this Court. Sub-Section (2) of Section 439 of the Code provides that a High Court or Court of Session may direct that any person, who has been released on bail Page 5 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER under this Chapter be arrested and commit him to custody. The bail once granted to an accused cannot be cancelled, unless there is a case made out. Ordinarily, the High Court should not interfere with the grant of the bail by the Sessions Court. The conduct of the accused consequent to the release on bail and the antecedents are to be regarded for cancellation.
4.2 The Apex Court in the case of 'MS. X Vs. THE STATE OF TELANGANA AND ANR.' in CRIMINAL APPEAL NO 000716 OF 2018 arising out of SPECIAL LEAVE PETITION (CRIMINAL) NO 1130 OF 2018 was considering the question of cancellation of bail. Bail was granted to the accused by the learned single Judge of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh. The second respondent- the accused was a film producer, based in Mumbai. The complainant alleged, in her complaint that in June 2014, she had enrolled in an institute which imparts training in film acting. She resided in a rented apartment in Mumbai. The complainant states that she became acquainted with the niece of the accused, who was to be married in December 2014. In the course of her visits to the home of her friend, the complainant became acquainted with the accused, who was producing a Hindi film. In July 2015 the accused is alleged to have invited himself to the home of the complainant. The accused and the complainant had wine. The complainant alleges that she felt dizzy after a few sips, and the accused forced himself upon her. It was after she regained senses that she realised that the Page 6 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER accused had raped her. The complainant, therefore, lodged the FIR, alleging that the accused had made false promises to her and had exploited her. After investigation, police filed the charge-sheet and the accused was granted anticipatory bail. He enjoyed the same for about eight months. Later on, the order of anticipatory bail was cancelled by the learned Sessions Judge, principally on the ground that the accused had not disclosed the fact that he had been accused in the 2G Spectrum case. This order, when challenged before the High Court, was confirmed with the clarification that while dealing with the application of the accused under Section 439 of the Code, the Court shall not be influenced by any of the observations made, while canceling anticipatory bail. Later on, the High Court allowed his application for regular bail. This was challenged before the Apex Court, where, both the sides made their respective arguments.
4.3 It was argued for and on behalf of the accused that before the granting of regular bail, he was privy to the anticipatory bail. It was also urged that supervening circumstances, for cancellation of bail, must be of such a nature as to lead to the conclusion that the accused does not deserve to be at liberty either by reason of violation of the conditions of bail or due to supervening conduct which bears upon the misuse of liberty by the accused. The Apex Court take into consideration the two facets, viz. (i) Whether the High Court was justified in granting bail to the accused under Section 439, and Page 7 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER
(ii) Whether there are any supervening circumstances which would warrant the cancellation of the bail granted by the High Court, and observed and held as under:
"11. While the principles in regard to the grant of bail under Section 439 are well settled, we may note for the completeness of the record, that reliance has been placed on behalf of the appellant on the decisions of this Court in Kanwar Singh v State of Rajasthan1, Neeru Yadav v State of UP2 and State of Bihar v Rajballav Prasad3. In Kanwar Singh, a Bench of two learned Judges of this Court has held thus:
"Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court."
In Neeru Yadav, applying the same principle, this Court held that:
"It is a well-settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are: (i) the nature of Page 8 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) prima facie satisfaction of the Court in support of the charge."
The decision in Rajballav Prasad emphasises that while the liberty of the subject is an important consideration, the public interest in the proper administration of criminal justice is equally important: "...undoubtedly the courts have to adopt a liberal approach while considering bail applications of accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is this need for larger public interest to ensure that criminal justice delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations."
12. In a consistent line of precedent this Court has emphasised the distinction between the rejection of bail in a non- bailable case at the initial stage and the cancellation of bail after it has been granted. In adverting to the distinction, a Bench of two learned Judges of this Court in Dolatram v State of Haryana4 observed that:
Page 9 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019R/CR.MA/7499/2018 ORDER "Rejection of a bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. 4 (1995) 1 SCC 349.
Generally speaking, the grounds for cancellation of the bail, already granted, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion of attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."
These principles have been reiterated by another two Judge Bench decision in Central Bureau of Investigation, Hyderabad v Subramani Gopalakrishnan5 and more recently in Dataram Singh v State of Uttar Pradesh6:
"It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of Page 10 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."
13. Having considered the rival submissions, we are not at this stage, inclined to delve into the merits of the allegations at any length in order to preclude the possibility of our observations influencing the course of the trial. Since the appeal has been argued at some length before the Court, we are indicating our reasons, though with a clarification - by way of abundant caution
- that our observations are confined to the issues which arise here in an appeal against the order of the High Court granting bail under Section 439. Having heard learned counsel, we have arrived at the conclusion that the exercise of discretion by the High Court in the present case cannot be faulted. We must, at the outset, note that the case of the complainant is that the accused had (as she described in the complaint) "been making false promises for getting married to her". This has been reiterated in the charge-sheet which has been submitted on 6 March 2018. At this stage, all that we need to note is that even going by the case of the complainant, there was intimate contact between the complainant and the accused over a period of nearly six months between July 2015 and January Page 11 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER 2016. Even according to the complainant, she visited the accused on two occasions in Hyderabad and stayed with him. The tickets for her travel from Mumbai were borne by the accused. The complaint was filed nearly a year thereafter in January 2017. This is a relevant circumstance which has been taken note of by the High Court. These circumstances do bear upon the defence that there was a consensual relationship between the complainant and the accused. Both in her complaint as well as in the charge-sheet, it has been alleged that the accused had falsely promised to marry the complainant.
However, in the course of the rejoinder, the complainant has substantially diluted this stand, alleging that:
"That the Petitioner has at every stage - including in arguments before this Hon'ble Court - maintained that the promise to marry was merely a complete elucidation of the facts and circumstances of the case."
During the course of the hearing, learned counsel appearing on behalf of the complainant submitted that this is not a case involving a breach of a promise to marry.
14. The accused had the benefit of an order granting him anticipatory bail. The grant of anticipatory bail was cancelled principally on the ground that he had not disclosed the pendency of a prosecution against him in the 2G Spectrum case. The Court has been informed during the course of the hearing that the said prosecution has ended in an acquittal. Regular bail was granted by the High Court on 17 November 2017 in the present case. The second FIR which was lodged on 22 November 2017 is not, in our view, a supervening circumstance of such a nature as would warrant the cancellation of the bail which was granted by the High Court. The learned counsel appearing on behalf of the accused Page 12 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER has submitted that the lodging of the second FIR, four days after the order of bail is merely an attempt to bolster a case based on a supervening event and that it suffers from vagueness and a complete absence of details. We are not inclined to make any further observations and leave the matter there. Above all, the Court must bear in mind that it is a settled principle of law that bail once granted should not be cancelled unless a cogent case, based on a supervening event has been made out. We find that to be absent in the present case.
15. For the above reasons, we hold that the order of the High Court allowing the application for bail cannot be faulted. Moreover, no supervening circumstance has been made out to warrant the cancellation of the bail. There is no cogent material to indicate that the accused has been guilty of conduct which would warrant his being deprived of his liberty.
16.However, we are of the view that the quantum of the personal bond fixed by the High Court should be enhanced in the facts and circumstances of the case. We, accordingly direct that the quantum of the personal bond shall stand enhanced to Rs 10 lakhs. Compliance shall be effected within two weeks from today. Subject to the above modification, the appeal shall stand disposed of. Pending IAs, if any, shall also stand disposed of."
17. 4.4 It is quite clear from this decision and the decisions referred to by the Apex Curt that the parameters for cancellation of bail and grant of bail would differ. For the bail to be cancelled requires overwhelming circumstances. Unless an attempt is made to interfere with the due course of Page 13 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER administration of justice or evasion of attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner or the satisfaction of the court or having been granted on erroneous considerations or overlooking the settled ratio and parameters for grant, on the basis of material placed on the record of the possibility of the accused, there will be necessity to cancel the bail.
5. Having heard the learned Advocates on both the sides and taking into consideration the factual matrix, this Court notices that the Sessions Court has often dealt with all the aspects to justify its grant of regular bail to both the accused. This Court, however, would preclude itself from going deeper into the merits of the allegations, so as not to influence the course of trial. This Court would, therefore, restrict itself to the factual background. It is a matter of record that the parties are litigating over the suit land before the civil Court and those proceedings are pending for more than two years. Belated lodgment of the FIR is also one of the grounds raised by the applicant.
5.1 As per the details on the record, after the applications for anticipatory bail of the respondents were rejected, they were granted regular bail, which they have been enjoying for a number of months. The trial Court gave elaborate and cogent reasons in support of its order. There is no supervening Page 14 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019 R/CR.MA/7499/2018 ORDER circumstances, which would require this Court to interfere and cancel the bail. Of course, the police has not been able to make a headway so far as the original POA is concerned. However, that itself is not a ground for this Court to cancel the bail. This Court is already considering the an application for transfer of investigation and again. It is the case of the accused that the original purchaser has POA with him, who is a close associate of complainant. As, ordinarily, POA is to be handed over to the person, who purchases a property through POA. The allegations made in the FIR also alleges clearly of extreme law consideration of the land in question. Civil litigations, by and between the parties, as mentioned, are also pending. Entire case is essentially based on the documentary evidence, where, the tampering of the same is unlikely. The detailed and the cogent reasons, which have been given by the Court concerned, while granting bail, also would weigh with this Court and therefore also, the orders do not deserve interference. In the absence of any supervening circumstances, this Court is not inclined to interfere with the order of bail. However, the quantum of personal bond fixed by the Sessions Court and other conditions deserve some interference.
6. Resultantly, these applications fail and are DISMISSED. This Court, however, while parting, deems it fit to enhance the quantum of personal bonds of both the accused to the tune of Rs.5/- (Five) Lakh with two solvent sureties of the like amount.
Page 15 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019R/CR.MA/7499/2018 ORDER 6.1 Over and above that the accused shall NOT
TRANSFER the land in question in any mode or manner till the final adjudication of the criminal case and an entry to that effect shall also be made in the REVENUE RECORD maintained by the office of the concerned Sub-Registrar. Let an memorandum be sent to the office of the Sub-Registrar by the Registry of this Court within one week. Rule is discharged.
(SONIA GOKANI, J) UMESH/-
Page 16 of 16 Downloaded on : Wed Jul 03 01:11:13 IST 2019