Gujarat High Court
Babubhai Somabhai Makwana vs State Of Gujarat & on 17 July, 2014
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/2762/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
2762 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BABUBHAI SOMABHAI MAKWANA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HRIDAY BUCH, ADVOCATE for the Applicant(s) No. 1
MR RD DAVE, ADVOCATE for the Respondent(s) No. 2
MS JD JHAVERI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 17/07/2014
CAV JUDGMENT
Rule. Service of rule is waives by Md.
Jhaveri, Ld. APP for the respondent no. 1 and Mr. Page 1 of 10 R/CR.MA/2762/2014 CAV JUDGMENT Dave, Ld. Advocate for respondent no. 2.
2 The petitioner is original complainant. He has lodged one complaint under sections 406, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code [IPC] with Manjalpur Police Station of Vadodara city on 25/12/2012.
3 The sum and substance of the complaint is to the effect that forged agreement to sell is executed in the name of the father of the complainant in favour of the accused no. 1, who is respondent no. 2 in this application, on 12/9/1988. Thereby the complaint is filed almost after 25 years. It is further alleged in the complaint that on 29/9/1988 forged power of attorney was executed in the name of the father of the petitioner in favour of co-accused Bipin Ambalal Khalasi and a forged possession receipt was also prepared with a forged signatures of the petitioner as well as his father so as to prove that possession was handed over by them to the respondent no. 2. It is further stated that the father of the petitioner died on 29/11/1988 and thereafter on 11/1/1993 another forged power of attorney was executed in the name of the present petitioner and based upon such document, respondent no. 2 has filed a civil suit. It is further stated that the petitioner has appeared in the suit on 28/6/2012 and on 25/12/2012 complaint was registered, as stated hereinabove.
4 It is also disclosed that all the accused Page 2 of 10 R/CR.MA/2762/2014 CAV JUDGMENT including respondent no. 2 had filed one Criminal Misc. Application No. 910/2013 to quash such complaint and even pending such petition, on 12/2/2013 sale-deed was executed in favour of the respondent no. 2 on the basis of forged power of attorney dated 11/1/1993. The record shows that the above referred Criminal Misc. Application was ultimately disposed of as withdrawn on 11/3/2014 considering the fact that pending such application charge-sheet was filed.
5 Meanwhile, on 23/3/2013 petitioner complainant has filed further written complaint for the mischief played by the respondent no. 2. Whereupon the Investigating Officer [IO] has, after recording statements, submitted a report to the trial Court for adding sections 3 [1][4] and [5] read with sub-section [8] and [9] and [3], [2] and [5] of the Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act [for short 'Atrocities Act']. Apprehending arrest because of such report, the respondent no. 2 and other co-accused have filed Criminal Misc. Application No. 14517/2013 before this Court to quash the addition of offences under the Atrocities Act. On 16/9/2013 the Coordinate Bench of this Court granted ad-interim relief and thereby further proceedings with regard to the part of the report under the provisions of the Atrocities Act have been stayed, though investigation for the offences under the IPC was directed to be continued. The petitioner has also initiated the proceedings before the District Magistrate for restoration of the possession of the property. The Page 3 of 10 R/CR.MA/2762/2014 CAV JUDGMENT bail application of Bipin Ambalal Khalasi, co-accused, was rejected by the Sessions Court and he has also withdrawn the bail application filed before this Court, on 24/7/2013. Meanwhile, charge-sheet was filed wherein respondent no. 2 herein has been shown as absconding accused. However, after filing of the charge-sheet, bail application of co-accused Bipinbhai was allowed by this Court; whereas anticipatory bail application by other co-accused was rejected by the Sessions Court on 21/11/2013. It is further alleged that during all such period, respondent no. 2 remained absconded and thereupon the competent Court issued warrant against respondent no. 2 and thereby on 7/2/2014 respondent no. 2 was obliged to file Criminal Misc. Application No. 256/2014 before the Sessions Court seeking anticipatory bail.
6 Order dated 14/2/2014 below such application is under challenge at present so as to cancel the anticipatory bail granted in favour of the respondent no. 2.
7 The narration of factual details hereinabove categorically makes it clear that the petitioner - complainant has filed a complaint after 25 years and all other co-accused were released on bail by the Coordinate Bench of this Court considering the fact that the complaint is late and dispute seems to be of civil nature and based upon documentary evidence. Therefore, if at all forgery is proved on record, then accused would have no escape and simialrly it would not be possible for them to hamper or tamper with the Page 4 of 10 R/CR.MA/2762/2014 CAV JUDGMENT evidence if at all it is proved that documents in question were not signed by the signatories viz the complainant and his father. Meanwhile, considering the filing of charge-sheet, the application to quash the charges under the Atrocities Act was disposed of as withdrawn by an order dated 11/3/2014 observing that ad-interim relief granted earlier stands vacated. Thereby it is clear and certain that there was interim relief against investigation and addition of charges under the Atrocities Act when impugned order was passed on 14/2/2014. Such stay was there since 16/9/2013.
8 In view of above facts and circumstance and perusing the entire record of the application, now it becomes clear from the copy of the charge-sheet, filed at Annexure-Q, does not include the charges under the Atrocities Act, since charge-sheet was filed pending Criminal Misc. Application No. 14517/2013 where there was a stay against further proceedings under the Atrocities Act.
9 Therefore, the only question remains is regarding allegations under the provisions of the IPC regarding commission of forgery by concocting false documents, but for such allegations, it is clear that it was done before 25 years. In view of such facts and circumstances, if we peruse the impugned order, the trial Court has assigned proper reasons to exercise its jurisdiction in granting anticipatory bail to respondent no. 2 and, therefore, I do not find any Page 5 of 10 R/CR.MA/2762/2014 CAV JUDGMENT substance in the application to cancel bail of the respondent no. 2 at present merely because of the fact that he was not arrested at the relevant time. The fact remains that even if the trial Court has to issue warrant and has to initiate proceedings under section 79 or 80 of the Code of Criminal Procedure, it cannot be said that only because of that, person is not entitled to bail if otherwise he is entitled to such benefit, because if we consider the entire record, it becomes clear that when person is holding land by disputed document and when he is residing in the area, it cannot be said that he remained absconded, at the most it can be presumed that police has never bothered to trace out and arrest such person. It may be because of the pending litigation before this Court to quash the FIR, which was filed after 25 years of the commission of the offence.
10 In any case, this application is preferred challenging the merits of the impugned order. However, when there is no illegality, irregularity, perverseness or arbitrariness in such impugned order, there is no reason to quash such order.
11 So far as reference of judgment dated 15/4/2013 rendered by the Hon'ble Apex Court in Criminal Appeal No. 595/2013 with reference to the jurisdiction of the Courts to grant anticipatory bail in case of charges against Atrocities Act is concerned, the fact remains that when anticipatory bail was granted, proceedings under the Atrocities Act Page 6 of 10 R/CR.MA/2762/2014 CAV JUDGMENT were stayed by this Court and, therefore, it cannot be said that Sessions Court does not have jurisdiction to grant anticipatory bail for the offences under the IPC only because of the report made by the IO to add the charges under the Atrocities Act. Suffice it to say that the complainant is serving in the bank, allegations are regarding forgery of the documents and that too after 25 years, hence there is least chances of considering the offences under the Atrocities Act.
12 In view of the above facts and circumstances, there is no substance in the application. However, observation made in this judgment is only for deciding this application and it should not be treated as final determination or conclusion of any issue, which is to be decided by the trial Court after recording evidence and in accordance with law.
13 So far as impugned order is concerned, the Sessions Court has considered all relevant aspects and when there was no prior incidents, Addl. Sessions Court has deemed fit to grant bail.
14 Respondent is relying upon the decision in Jetha Bhaya Odedara v. Ganga Maldebhai Odedara, reported in 2012(1) GLH, 601, wherein, though there was allegation under Sections 302, 324, 147 etc. and though there were death and serious injuries, the Hon'ble Supreme Court has refused to interfere with the order of bail when accused have not misused their Page 7 of 10 R/CR.MA/2762/2014 CAV JUDGMENT liberty by bail order or never tried to tamper with the evidence or to commit any other act which may call for cancellation of bail.
15 In the present case also, there is no allegation regarding misuse of liberty. Thereby, the cancellation of bail is prayed on merits of the order of bail. However bail cannot be cancelled only because somebody files an application for cancellation of bail.
16 Recently, in Criminal Case Nos. 1542 of 2014 and 1766 of 2014 between Ankit Sharma v. State of NCT of Delhi and State of NCT of Delhi v. Gopal Goyal Kanda, Delhi High Court has considered the applications for cancellation of bail. The Delhi High Court has after narrating all the relevant factual details taken care of all the judgments cited by both the sides in both the cases, which are as under:
"13. Learned counsel for the petitioner has relied upon judgments in State of Maharashtra vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292, Kishore Samrite vs. State of U.P. &Ors., (2013) 2 SCC 398, State through CBI vs. Amarmani Tripathi, VII(2005) SLT 160, Prahlad Singh Bhati vs. NCT of Delhi & Anr., AIR 2001 SC 1444, Gurcharan Singh & Ors. vs. State (Delhi Administration), AIR 1978 SC 179,A.V. Papayya Sastry vs. Govt. of A.P. & Ors., (2007) 4 SCC 221 and Kalyan Chandra Sarkar vs. Rajesh Ranjan@ Pappu Yadav &Anr., (2004) 7 SCC 528.
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17 Learned counsel for the respondent has
relied upon judgments in Sanjay Chandra vs.
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R/CR.MA/2762/2014 CAV JUDGMENT
Central Bureau of investigation, (2012) 1 SCC 40, H.B. Chaturvedi vs. CBI, 2010 (171) DLT 223, Avtar Singh vs. State of Punjab, (2010) 15 SCC 529, Laloo Prasad alias Laloo Prasad Yadav vs. State of Jharkhand, (2002) 9 SCC 372,Deepak Shubhashchandra Mehta vs. CBI & Anr., (2012) 4 SCC 134, Dolat Ram & Ors. vs. State of Haryana, (1995) 1SCC 349, Ramcharan vs. State of M.P., (2004) 13 SCC 617, Nityanand Rai vs. State of Bihar & Anr., (2005) 5 SCC 178, Hazari Lal Das vs. State of West Bengal & Anr.,(2009) 10 SCC 652, Jai Kumar vs. Balhari & Anr., II(2011) SLT 302, Rahmita vs. State & Ors., I(2012) VIII AD (Delhi)376, Govind Narain Johari vs. State & Anr., 2013 V AD (Delhi)179 and Suresh Kalmadi vs. CBI, 2012 (187) DLT 575."
17 The Delhi High Court has quoted relevant paragraphs of relevant citations. Therefore, repetition of all such paragraphs are not necessary at present but what is concluded by Delhi High Court in Paragraph nos.23, 24 and 28 are reproduced as under:
"23. It is a settled law that bail granted can be cancelled on the ground which has arisen after the bail was granted. It is generally presumed that at the time of hearing of the bail application, the prosecution has raised all possible grounds which could go against the accused in the matter of bail and, therefore, when once bail has been granted to the accused, the prosecution cannot have the bail cancelled on some circumstances which may have existed before the grant of bail.
24. The ground of cancellation of bail and grounds of rejection of bail are two different circumstances and hence the approach of the Court should also be different. At the time of hearing the bail application, the Court looks at the possibilities of the violation of bail conditions and the Court has to be more open and flexible, whereas while hearing the cancellation application, the Court has to be more rigid andit has to examine not only the possibility of violations Page 9 of 10 R/CR.MA/2762/2014 CAV JUDGMENT but whether the actual violation has taken place or not. The Court should be more rigid here and actual proof of violation is required.
Xxx xxx xxx xxx xxx
28. No doubt, the offence with which
respondent/accused is charged is serious in nature, but every accused is presumed innocent until proved guilty beyond reasonable doubt and every accused person has the right to enjoy the bail granted to him unless there is evidence to show the abuse of this right given to him. It is reemphasized by this Court that at the time of dealing with the question of cancellation of bail of an accused, the only issue which is germane is whether the accused has misused the conditions of bail or tampered with the investigation or the evidence or not."
18 Moreover, when investigation is over and charge-sheet has been filed, now after the decision in Siddharam Satlingappa Mhetre v. State of Maharashtra, reported in 2011(1) SCC 694, there is no reason to cancel the bail. Hence, the present application deserves to be dismissed. Rule is discharged.
(S.G.SHAH, J.) * Pansala Page 10 of 10