Gujarat High Court
Ketanbhai Arvindbhai Patel vs State Of Gujarat on 31 July, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/4873/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4873 of 2018
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KETANBHAI ARVINDBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the PETITIONER(s) No. 1,2
MR. KISHAN H DAIYA(6929) for the RESPONDENT(s) No. 1
MR.KISHAN PRAJAPATI(7074) for the RESPONDENT(s) No. 1
MS MD MEHTA, PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 31/07/2018
ORAL ORDER
Rule. Learned APP waives service of rule for the Respondent-State and the Learned Advocate, Mr. Daiya, waives for the original complainant.
1. This is an application under Section 439 of the Code of Criminal Procedure, 1973, for grant of regular bail in connection with the offence registered as I-C.R. No. 69 of 2017 with Sachin GIDC Police Station, Surat, under Sections 406, 409, 420, 465, 467, 468, 471, 120B and 34 of the Indian Penal Code, 1860.
2. Both the applicants had moved the competent Court at Surat by way of Criminal Misc. Application Nos. 7121 of 2017 and 6997 of 2017, Page 1 of 13 R/CR.MA/4873/2018 ORDER which rejected their plea and dismissed those applications on 11.10.2017, and therefore, they are before this Court.
3. The business of constructions is started by both the applicants and they floated a scheme of residential flats on the land bearing Revenue Survey No. 175/2, Block No. 160 and the land bearing Sruvey No. 176/1, Block No.159, situated at Village: Kansad. The first informant is alleged to have booked a flat by making the payment of token amount, initially. On completion of the construction of the flats, a registered sale deed came to be executed in favour of the first informant on 17.12.2014, which came to registered with the office of the Sub-Registrar vide Serial No. 5471 on 19.12.2014. On obtaing the registered document, when the first informant approached the Kanakpur-Kansad Municipality for registering the same in her name, she came to know that said flat had already been transferred in the name of one Manoj Bhagwat Mahajan. She also came to know that similar kind of modus had been operated by the applicants, whereby, nearly 16 flats had been sold twice. It is nothing but a clear intent on the part of the applicants to cheat her and others, and therefore, she filed the aforesaid complaint, and hence, this application.
Page 2 of 13R/CR.MA/4873/2018 ORDER 4. This Court has heard the learned
Advocate, Mr. N.K. Majmudar, for the applicants, who has fervently urged that both the applicants are young and are behind the bars for nearly one and a half year. The charge-sheet has already been filed, and therefore, no purpose would be served by keeping them behind the bars. The prosecuting agency has collected the entire material and the case is essentially based on documentary evidences. Moreover, he also has further urged that the judicial custody was essentially to secure the presence of the applicants at the time of trial, which is bound to be procured, as they are the residents of Surat, having their well established business there. The dispute, according to the learned Advocate, is essentially civil in nature and the first informant and others have already initiated various proceedings under the Negotiable Instruments Act, 1881, the Consumer Protection Act so also before the Civil Court at Surat, and therefore also, this is a case, which been given a more criminal colour by the flat holders. There is neither any forgery nor concoction of any document. In absence of any ingredients of cheating, the Court may exercise discretion of grant of regular bail in favour of the applicants.
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5. Reliance is placed on various decisions of the Apex Court and of this Court, urging that the regular bail be granted to the applicants. He also has relied on the decision of the Apex Court in 'SANJAY CHANDRA VS. CBI', (2012) 1 SCC 40, and urged that 'Bail and not jail' is the principle, which should be guiding the Court at the time of deciding bail application.
6. Per contra, learned Advocate, Mr. Bharda, appearing with learned Advocate Mr. Dahiya, for the original complainant has strongly resisted this application on the ground that, although, 'Bail and not Jail' is the basic rule, there are circumstances, which would be suggestive overwhelmingly, as in the instant case, that releasing them on bail would be creating trouble for the players of the criminal justice system. Both the applicants are repeat offenders and they do not have any hesitation in indulging themselves in similar offences by various modes of cheating the persons. They have nearly 37 complaints under the NI Act and 28 inquiries pending against them. He has, further, urged that considering the chronology of the events and considering their characters, they are the kinds of persons, who would be blatantly misusing their liberty, as they have done in the Page 4 of 13 R/CR.MA/4873/2018 ORDER past. He also relied on the fact that in similar such case, the Coordinate Bench has rejected the application.
7. This Court had availed an opportunity for the petitioners to show their bona fides by offering the alternative place of residence to the persons, who have been waiting for the same for nearly 12 years, while pursuing the dream of owning their own home, which not only the present applicants have ruined but they have also sent them post to pillar for getting back the money, which they have invested long ago. It is their life time savings, as many of them are barely in a position to purchase a residential home.
8. Learned APP, Ms. Mehta, also, on instructions, submitted that though the investigation is over, no leniency be shown in their favour. She has, further, urged that there are criterion for grant of bail and going by those set criterias, the present applicant would not fit in them. She, further, has urged that many attempts were made to ensure that the victims do not suffer for long, and therefore, an opportunity had been made available to them for providing alternative residential premises to them, however, they have failed in doing so.
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9. Having, thus, heard both the sides and also on considering the FIR as well as the papers of charge-sheet, this Court notices that the First Informant has had kick-started the criminal proceedings against the applicants and there are others, who have subsequently joined hear and it appears that there are nearly 17 persons, who have been affected by the wilful conduct of the present applicants of cheating and depriving them of considerable sum of money, which they had parted in pursuance of their dream of having their own residential premises. It appears that initially payment was made in the year 2006 with the promise made by the applicants that they shall be provided residential premises in the near future. However, it is only in the year 2014, when the registered sale deed was executed, the first informant realized that her residential premises was already sold to someone else. This is a repeated conduct in case of other 16 affected persons.
10. Considering the need for judicious exercise of powers, this Court also deemed it fit to avail them an opportunity to show their bona fides and the considerable time has been taken by them to ponder over the issue, as to whether, they can provide alternative residential premises or accommodation Page 6 of 13 R/CR.MA/4873/2018 ORDER or return the amount back. It appears that the applicants had been involved in such unacceptable and unpalatable activities in the past also and as is emerging from the chronology of the events, for the purpose of settling the dispute with one person, they have been indulging into cheating other person and with the money being extracted from the third party, the settlements are being arrived at with the persons, who have been cheated first. Continuation of such kinds of events has led to considerable time period having passed and many complaints having been accumulated.
11. There are certain criterion laid down in a catena of decisions for grant of regular bail, where, the nature of crime, the character of a person, his tendency of involving himself in repetition of such offences etc. are to be borne in mind by the Court, at the time of considering the request for grant of bail. Though, personal liberty is fundamental to any citizen, as held in many cases by Hon'ble the Apex Court, the same can be circumscribed by the process established by law and there has to be a balance of the grant of personal liberty and and the protection of community interest. This balance is very fragile and needs to be maintained by the Court. As can be noticed in various decisions, which have been Page 7 of 13 R/CR.MA/4873/2018 ORDER pressed into service, the Court has to, depending on the factual matrix of each case, strike a balance between these two aspects.
12. Being conscious of the fact that the charge-sheet has already been filed and the case revolves around predominantly the documentary evidences and also being conscious of the fact that the case is triable by the learned Magistrate which also may take some time and yet the chronology of the events in this case and the mounting numbers of cases, pending against the applicants in the form of inquiry so also in the form of complainants under the NI Act, in the opinion of this Court, the discretion cannot and must not be exercised in favour of the present applicants. The fundamental postulate of criminal justice system is that it would presume innocence of the person arraigned as an accused till he is held guilty and yet, the Court is not to be oblivion of the need of safeguarding the interest of the community, while considering bail. Many victims have suffered at the hands of the applicants and their tendency to repeat such kinds of an offences and also the possibility of many other falling prey to the design of the present applicants would preclude this Court to grant regular bail, one of the prime criterion is to ensure that the trial is not thwarted by the Page 8 of 13 R/CR.MA/4873/2018 ORDER applicants by not being available or also by tampering with the evidence and considering their past record and criminal antecedents, this Court is not inclined to exercise the discretion in favour of the present applicants. Exhaustive exploration of merit of the matter since is to be avoided by the Court at the time of considering bail application and prima facie case is found overwhelmingly against the applicants, no discretion is exercised.
13. Apt would be to refer to the decision of the apex court in case of 'ANIL KUMAR YADAV Vs. STATE (NCT) OF DELHI & ANR.', (2018) 2 SCC
129. The relevant observations, read thus:
"17. At the outset, it is to be pointed out that the Sessions Court considered both framing of charges and also grant of bail to accused Anil Kumar Yadav by way of a common order. On 27.02.2017, charges were framed against all the accused and bail was granted to appellant Anil Kumar Yadav. Insofar as framing of charges, in a case before the Sessions Court, under Section 228 of the Criminal Procedure Code, the court is required to consider "whether there is ground for presuming that the accused has committed an offence....." and then Court shall frame in writing a charge against the accused. For grant of bail, the court is required to consider several other factors. The Page 9 of 13 R/CR.MA/4873/2018 ORDER considerations for framing of charge and grant of bail are different. It was stated by the Bar that by and large this is the procedure followed in Delhi. We may however indicate that it is not desirable to frame charge and grant bail by way of a common order.
18. While granting bail, the relevant considerations are:- (i) nature of seriousness of the offence;
(ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice;
(iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. No doubt, this list is not exhaustive.
There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court.
19. While considering the basic requirements for grant of bail, in State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21, this Court has held as under:-
"18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the
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R/CR.MA/4873/2018 ORDER
charge; (iii) severity of the
punishment in the event of
conviction; (iv) danger of the
accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528: (SCC pp.
535-36, para 11) "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is Page 11 of 13 R/CR.MA/4873/2018 ORDER charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-
application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of
tampering with the witness or
apprehension of threat to the
complainant.
(c) Prima facie satisfaction of the court in support of the charge."
14. In case of 'GOBARBHAI NARANBHAI SINGALA VS. STATE OF GUJARAT AND OTHERS', AIR 2008 SC 1134, it is held and observed that the period of incarceration by itself would not entitle the accused to be enlarged on bail and this has been also reiterated by the Apex Court in case of 'RAM GOVIND UPADHYAY VS. SUDARSHAN SINGH', (2002) 3 SCC 598. Thus, their being in jail for one and a half year per se cannot be the round to release them. It is argued that they are more outside then inside, on temporary bail, in this period. Without further dilating this issue, let them be permitted to request to the trial Court to expedite the trial.
Page 12 of 13R/CR.MA/4873/2018 ORDER 15. For the reasons stated herein above,
this application fails and is REJECTED.
16. The applicants, however, shall be at liberty to make a request to the trial Court concerned to expedite the trial and if, such a request is made, the Court concerned shall consider the same in accordance with law. Rule is discharged.
(SONIA GOKANI, J) UMESH /-
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