Gujarat High Court
Mangilal Gangarambhai Mali vs State Of Gujarat on 4 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/22857/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22857 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary
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MANGILAL GANGARAMBHAI MALI
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAL M PANDYA(5257) for the PETITIONER(s) No. 1
MR BHAVESH BABARIYA(6788) for the RESPONDENT(s) No. 2
MR. RAKESH PATEL, ADDL. PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 04/04/2018
ORAL JUDGMENT
1. This is an application under section 439(2) of the Cr.P.C., 1973 at the instance of the original first informant for cancellation of anticipatory bail granted in favour of the Page 1 of 27 R/CR.MA/22857/2017 JUDGMENT respondent No.2 herein-original accused by the Addl. Sessions Judge, City Sessions Court, Court No.13, Ahmedabad in connection with a first information report registered with the Krishnanagar Police Station, District: Ahmedabad bearing C.R. No.I-210 of 2017 for the offence punishable under sections 406, 420, 467, 468, 471 read with 114 of the Indian Penal Code.
2. As this is an application for cancellation of anticipatory bail granted by the Sessions Court, let me first look into the case of the prosecution. The first information report, referred to above, is extracted hereunder;
"My name is Mangiram Gangaram Mali, Aged: 48, Occupation: Business, residing at: House No.17, Sadguru Homes, Beside Baroda Express High Way, Nr. Shree Nand City, New Maninagar, Ramol, Ahmedabad. Mobile No.9825182814.
Upon being asked personally, I state that, I am residing at the above mentioned address with my family. I possess the shop named Mahalaxmi Trading Company at: 1-Radhe Industrial Estate, Nr. Nika-tube Cross Road, Phase-4, GIDC, Vatva where I have been doing a business of Iron Scrap for the last fifteen years.
Having come personally, I declare and state the fact of my complaint that, my land bearing survey No.212/1/2 admeasuring to 0-23-27 Hector-Are-Sq.Mt., is situated in the fenced plot beside Maniba School, Sardar Chowk, which was jointly purchased in 2008 by me and my partner Prakashraj Sheshamalji Jain and Sunny Prakashraj Jain both residing at:33, Thakorbhai Tower, Nr.
Law Garden, Elisbridge, Ahmedabad from Bhagvatiprasad Bhimbhai Dave after executing a sale deed of Rs. Four lakhs and Rs.74051 for the Stamp Duty. Its original Sale Deed bearing registration No.6681/2008, dated: 23/07/2008 was kept with my partner Prakashraj Jain and the possession of this land was with us.Page 2 of 27
R/CR.MA/22857/2017 JUDGMENT Thereafter, in March-2016, having verified online about our land of the above Survey Number, we came to know that the land of aforesaid survey number purchased by us was transferred in the name of Ashok Babulal Mali. Therefore, when I talked about this with my partner Prakashraj Sheshamalji Jain, he told me that, this land has not been sold to anybody. Upon stating so, I went to his office and inquired about the same. He stated me that our partner: Gangaram Hemtaji Mali has stated me to execute power of attorney in favour of his son Kamlesh to develop the aforesaid land, to look after it and to convert it into N.A. Therefore, I had given consent for the same and Gangaram prepared draft of power of attorney and had sent it for my perusal. There was no mention in it regarding sale of the said land and it was correct. Later on, Gangaram got power of attorney prepared favouring his son Kamlesh Gangaram Mali and sent Krishnanand Satyaprakash Pande, working in his office to my office for my signature with notary register. I had put my signatures in the said power of attorney and in the said notary register and as it was not bearing your signature, I asked about the same to Krishnanand Pande and he stated that we will get signature of Mangilal done. Upon saying so, I had sent him for the signature of my son - Sunny to his factory at Odhav. Sunny had also put his signature in it. I had stated to the said Prakashraj that I had not made any signature or thumb impression in any power of attorney. Thus, the said Gangaram and his son Kamlesh have sold our aforesaid land to Ashok Babulal Mali, Residing at: 63/494, Chamanpura, Asarwa, Kalapinagar, Ahmedabad on the basis of power of attorney bearing fake signature and fake thumb impression through Sale Deed No. 2396/14. Thereafter, I had approached my advocate for the said land and he got the copies of records and looking to the power of attorney, it was registered at Sr.No. 0012/2013 in the register of Notary Mr. Asvhin V. Modi on 14/02/2013. Looking to the said power of attorney, my fake singature and thumb impression were put by the accused and without giving a single penny towards consideration of the said land, both had sold the said land directly against our knowledge in collusion with each other.
Therefore, during the year 2013 to March-2016, the aforesaid accused, either in their office situated at Krushnanagar, Sardar Chowk or at any other place, by Page 3 of 27 R/CR.MA/22857/2017 JUDGMENT stating to develop the said land and to look after the said agricultural land admeasuring Hector-Are-Sq. Mts. 00-23- 27 of Survey No.212/1/2 of Moje: Saijpur-Bogha and Taluka: Asarva belonging to us and by taking our partner:
Prakash into confidence, had prepared power of attorney in the name of Kamlesh Gangaram Mali and obtained signatures of my partners therein and affixed fake forged signature and thumb impression, though knowing it was false, used it as true and against our knowledge, they sold the said land to Ashok Babubhai Mali directly and had not given us any amount towards consideration. Thus, all the accused in collusion with each other, have committed cheating with me and my partners. Therefore, I give complaint to take legal action against aforesaid accused and others, whoever reveals during investigation. My witnesses are my partners Prakashraj, Sunnybhai and others, whoever reveals during police investigation.
Aforesaid complaint is true and correct as per my dictation and I have received copy of my complaint."
3. It appears that as the police initially was not inclined to register the first information report, the applicant herein had to come before this Court by filing the Special Criminal Application No.8912 of 2016 with a prayer for appropriate directions to the police to consider his compliant for the purpose of registration of the first information report. This Court, by an order dated 22nd November, 2016, directed the police to look into the complaint of the applicant herein and take a decision whether the same disclosed commission of a cognizable offence or not.
4. Later, the applicant had to, once again, come before this Court by filing the Special Criminal Application No.1722 of 2017. The said writ application came to be disposed of by this Court vide order dated 22nd March, 2017. The order is extracted hereunder;
Page 4 of 27R/CR.MA/22857/2017 JUDGMENT "By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs :
(A) Your Lordship may be pleased to admit and allow this petition;
(B) Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in a nature of registration of FIR pursuant to the complaint lodged before the Respondent No.3 on 3.8.2016, in compliance of the judgment of Honble Supreme Court in case of Lalita Kumari;
(C) Your Lordship may be pleased to grant such other and further reliefs as may be deemed fit, just and proper in the interest of justice.
It appears from the materials on record that the writ- applicant had come before this Court in the past by filing the Special Criminal Application No.8912 of 2016, which came to be disposed of by this Court vide order dated 22nd November 2016 in the following terms :
By this writ-application under Article 226 of the Constitution of India, the applicant has a grievance to redress as regards the inaction on the part of the police authority in not registering the First Information Report pursuant to the complaint lodged by him in writing dated 3rd August 2016 addressed to the Police Inspector, Krushnanagar Police Station, Ahmedabad city, for the offence punishable under the provisions of the Indian Penal Code.
The Police Inspector, Krushnanagar Police Station, Ahmedabad city, is directed to take into consideration the complaint filed by the petitioner in writing (Annexure-A, page 9, to this petition) and after going through the same, take a decision, whether the same discloses commission of a cognizable offence or not. After taking into consideration the complaint and other materials, if any, the Police Inspector is of the view that the Page 5 of 27 R/CR.MA/22857/2017 JUDGMENT same discloses commission of a cognizable offence, then appropriate directions be issued for registration of the FIR forthwith at the concerned Police Station. However, the Police Inspector, after going through the materials, is of the view that no case is made out for registration of the FIR, then in such circumstances, he shall inform the petitioner in writing about the same by assigning reasons in brief, within a period of four weeks from today.
With the above observations and directions, this petition is disposed of. I clarify that I have otherwise not gone into the merits of the matter.
For any reason, if the police authorities refuse to register the FIR, it shall be open for the petitioner to avail of the remedy under Section 200 of the Code of Criminal Procedure.
Direct service is permitted.
Pursuant to the order passed by this Court referred to above, a preliminary inquiry was conducted by the Police Inspector of the Krushnanagar Police Station, Ahmedabad city, and the officer concerned, vide communication dated 18th December 2016, informed the writ-applicant that since a civil suit is pending, he has not thought fit to register the FIR. The matter was accordingly closed.
The writ-applicant is once again here before this Court challenging the communication as, according to him, no inquiry worth the name was conducted.
Ordinarily, I would not have entertained this writ- application and would have relegated the writ-applicant to avail of the remedy under Section 200 of the Code of Criminal Procedure. I am saying so, because once a preliminary inquiry is conducted by the police, and at the end of it, if the police says that no case is made out for the registration of the FIR as the complaint fails to disclose commission of a cognizable offence, then this Court should not issue a mandamus. However, the facts in the present case are quite gross. The case of the writ- applicant is that his signature was forged on the power of attorney, and on the strength of such power of attorney, Page 6 of 27 R/CR.MA/22857/2017 JUDGMENT the land in question, i.e. the property in question, came to be disposed of.
It appears that on the disputed document, i.e. the power of attorney, there are three signatures. The three signatures are of three partners. The signatures of two partners appear to be genuine, whereas the third signature of the third partner, i.e. the writ-applicant, has been forged as alleged. Thereafter, using the said power of attorney, the property has been transferred by way of a registered sale-deed.
Naturally, to protect his rights in the property, the writ- applicant would have to file a civil suit for cancellation of the power of attorney as well as the sale-deed and that is what he has done. This action on the part of the writ- applicant of filing a civil suit by itself will not give a colour of civil dispute between the parties. In the preliminary inquiry, it was expected of the police officer concerned to collect the power of attorney, i.e. the disputed document, obtain the specimen signatures of the writ-applicant herein so as to compare them with the disputed signature. This could have been done only by referring the entire matter to the Forensic Science Laboratory.
I am not convinced with the manner in which the preliminary inquiry is conducted. The Police Inspector of the Krushnanagar Police Station, Ahmedabad city, is directed to collect the original document, i.e. the power of attorney, obtain the specimen signatures of the writ- applicant herein and refer it to the handwriting expert and await the report of it.
Once there is an assertion that the signature on the document is forged, it is the duty of the officer to register the FIR rather than conducting the preliminary inquiry in the matter.
Let me remind the police officer concerned of the observations made by the Supreme Court in one of the recent pronouncements in the case of State of Telangana v. Habib Abdullah Jeelani and others, (2017)2 SCC 779, wherein the Supreme Court observed as under :
The exceptions that were carved out pertain to medical negligence cases as has been stated in Page 7 of 27 R/CR.MA/22857/2017 JUDGMENT Jacob Mathew v. State of Punjab. The Court also referred to the authorities in P.Sirajuddin v. State of Madras and CBI v. Tapan Kumar Singh and finally held that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given , then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence.
The matter is remitted to the Police Inspector of the Krushnanagar Police Station, Ahmedabad city, for fresh consideration. Let the exercise be undertaken afresh bearing in mind the observations made by this Court in this order.
If the original document is in possession of the civil court, it is for the officer concerned to apply in accordance with law before the court concerned for possession of the same, so as to complete the investigation. Let this exercise be completed within a period of two months from today. Direct service is permitted."
5. Pursuant to the order passed by this Court, referred to above, the police, ultimately, registered the first information report referred to above.
6. The respondent No.2, apprehending arrest, preferred the Criminal Misc. Application No.5262 of 2017 in the court of the Page 8 of 27 R/CR.MA/22857/2017 JUDGMENT City Sessions Judge, Ahmedabad for anticipatory bail.
7. The City Sessions Judge, Court No.13, Ahmedabad allowed the anticipatory bail application and ordered the release of the respondent No.2 on bail in the event of his arrest by the police.
8. The impugned order passed by the court below, granting anticipatory bail to the respondent No.2, is extracted hereunder;
" Order passed below Exhibit-1 (1) As per section-438 of Cr.P.C., Ashok Babulal Mali -
the applicant / accused of the present case has filed present application for anticipatory bail in the case registered vide I- C.R.No. 210/2017 with Krushnnagar Police Station for the offence punishable u/s. 406, 420, 467, 468, 471 and 114 of I.P.C.
(2) Application filed by the applicant has been read and documents produced on his behalf have also been considered. Ld. Adv. Mr. V. D. Gajjar for the applicant and Ld. P.P. Mr. Sudhir Brahmbhatt for the State have been heard.
(3) Ld. Adv. Mr. Gajjar for the applicant / accused has submitted that the present applicant / accused has purchased the property by paying consideration money. The complainant has not refused the fact of putting signature in the power of attorney. That, there is a civil dispute between the parties, no offence is constituted against the applicant / accused and the parties have filed civil suit. Further, it has been prayed that the present applicant / accused will cooperate in investigation and therefore, under such circumstances, he may be granted anticipatory bail. Further, in support to his argument, the Ld. Adv. for the applicant / accused has produced judgment delivered in the case of Arneshkumar V/s. State of Bihar, reported in 2014, AIJEL(SC), Page No. 55515.
Page 9 of 27R/CR.MA/22857/2017 JUDGMENT The same has been perused.
On the other hand, the Ld. P.P. Shri Brahmbhatt has submitted such on behalf of the State that the present applicant / accused is involved in serious type of offence and he has fabricated false documents. Presently, the investigation is pending and during the investigation, the presence of the applicant / accused is necessary. Therefore, under such circumstances, it has been prayed to reject the present bail application.
Against the present application filed by the applicant / accused, the objections on behalf of the original complainant have been produced vide Exh-8. Whereas, the documents have been produced vide Exh-9 and an affidavit has also been produced by the Investigating Officer. They have been perused.
(4) Thus, considering the arguments of both the parties, documents, record and affidavit of the Investigating Officer, it is found that offence was registered against the present applicant/ accused vide Krushnanagar Police Station C. R. no. I - 210/2017 under section 406, 420, 467, 468, 471 and 114 of the IPC. The charges against the applicant/ accused are that the other accused persons of this case fabricated false power of attorney to avail financial benefits and despite having knowledge that it was a fabricated power of attorney, it was used as genuine and took consideration from the present applicant/ accused and sold the disputed property. Therefore, it is not found that the present applicant/ accused fabricated any document or used fabricated documents as genuine. The document has been prepared by other accused persons and on the basis of that document, the disputed property was sold to the present applicant/ accused after taking consideration. Under such circumstances, considering the submission of both the parties, the entire fact on record and guiding principles established in the judgement of the Hon'ble High Court, as it is found just and proper to release the applicant/ accused on anticipatory bail, the following order is passed upon the said application.
ORDER Order is passed to release applicant/ accused - Ashok Page 10 of 27 R/CR.MA/22857/2017 JUDGMENT Babubal Mali in the event of arrest in case of Krushnanagar Police Station C. R. no. I - 210/2017 registered u/s 406, 420, 467, 468, 471 and 114 of the IPC, on anticipatory bail subject to following conditions after production of bail amount of Rs. 10,000/- (ten thousand rupees) and personal surety of the like amount in the concerned police station as per section - 438 of the Criminal Procedure Code.
9. Being dissatisfied with the order passed by the court below, referred to above, the original first informant is here before this Court with a prayer that the anticipatory bail be cancelled.
10. Mr. B.B. Naik, the learned senior counsel appearing for the applicant vehemently submitted that not only the reasonings assigned by the court below are extremely poor but it could be said that the court concerned has no idea about section 438 of the Cr.P.C. Mr. Naik submitted that the court below failed to consider any of the parameters as laid down by the Supreme Court for the grant of anticipatory bail. The court below rather dealt with the anticipatory bail application in a most casual and cavalier manner and showed undeserving and unwarranted sympathy towards the accused. Mr. Naik would submit that even, as on date, the original power of attorney, i.e. the disputed document containing the forged signature of the applicant is not available with the Investigating Agency. Mr. Naik pointed out that two other co-accused came to be arrested and were subjected to custodial interrogation. In the course of their custodial interrogation, the entire blame has been thrown on the respondent No.2 herein. According to the other two co-accused, it is the respondent No.2 herein who is in possession of the disputed document, but the respondent Page 11 of 27 R/CR.MA/22857/2017 JUDGMENT No.2 is not parting with the document on account of the fear that it would be established that the signature on the document in question of the applicant has been forged.
11. Mr. Naik submitted that for the grant of anticipatory bail in an offence of the present nature, very special and extraordinary circumstances need to be pointed out. Anticipatory bail cannot be granted on mere asking. According to Mr. Naik, the plain reading of the impugned order would indicate that the anticipatory bail came to be granted in favour of the respondent No.2 on mere asking. The impugned order could be termed as a non-speaking order.
12. In such circumstances, referred to above, the learned senior counsel prays that there being merit in this application, the same be allowed and the impugned order be quashed and the anticipatory bail be cancelled.
13. On the other hand, this application has been vehemently opposed by Ms. Patel, the learned counsel appearing for the respondent No.2-original accused. Ms. Patel would submit that no error, not to speak of any error of law, could be said to have been committed by the court below in granting the anticipatory bail to her client. Ms. Patel would submit that although the impugned order may not be termed as a well reasoned, yet that by itself, would not be sufficient to cancel the anticipatory bail. Ms. Patel relied on the averments made in the affidavit filed on behalf of the respondent No.2, wherein the entire history of the litigation has been narrated. According to Ms. Patel, the prosecution instituted by the applicant herein is nothing but gross misuse of the police Page 12 of 27 R/CR.MA/22857/2017 JUDGMENT machinery. Ms. Patel , in such circumstances, prays that there being no merit in this application, the same be rejected.
14. The learned APP appearing for the State supported the case of the applicant herein and submitted that the anticipatory bail granted by the court below deserves to be cancelled.
15. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the court below committed any error in granting the anticipatory bail to the respondent No.2.
16. It is a settled position of law that neither anticipatory bail nor regular bail can be granted as a matter of rule. The anticipatory bail, being an extraordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail.
17. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., AIR 1995 SC 1198, the Supreme Court considered the nature of the right of anticipatory bail and observed as under:
"We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code..... Also anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article Page 13 of 27 R/CR.MA/22857/2017 JUDGMENT 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21."
18. While deciding the aforesaid case, the Supreme Court referred to the 41st Report of the Indian Law Commission dated 24th September, 1969 recommending the introduction of a provision for grant of anticipatory bail wherein it has been observed that the "power to grant anticipatory bail should be exercised in very exceptional cases".
19. The concept of setting aside an unjustified, illegal or perverse order is totally different from cancelling an order of anticipatory bail on the ground that the accused had misconducted himself or because of some supervening circumstances warranting such cancellation. Although there may not be any breach of the conditions imposed by the court below in the order of grant of anticipatory bail, yet the order, being absolutely unjustified, illegal and perverse, the same deserves to be quashed.
20. I have reached to an inescapable conclusion that the Sessions Court did not apply any of the settled parameters rather dealt with the anticipatory bail application in a most casual and cavalier manner.
21. In Maruti Nivrutti Navale vs. State of Maharashtra, reported in 2012 (9) SCC 235, the Supreme Court while dealing with almost an identical issue declined to grant anticipatory bail to the appellant. In the case before the Supreme Court also there were allegations of forgery. I may quote the relevant observations;
Page 14 of 27R/CR.MA/22857/2017 JUDGMENT "9) During the course of hearing, Mr. Rohtagi, learned senior counsel for the appellant by taking us through the MoUs and lease deed and also the corrections in those documents submitted that those corrections have been made with the consent of the Complainant and according to him, no forgery has been committed as claimed by the respondents. He pointed out that inasmuch as the sale deed could not take place and the property of the Trust could be leased out for a period of more than 3 years without the permission of the Charity Commissioner, the lease deed for a period of 35 months was executed and registered as stop-gap arrangement with an understanding that the Trust would approach the concerned Assistant Charity Commissioner for necessary permission and, thereafter, the lease deed for a period of 87 years in respect of the school building and the sale deed about the larger property could be executed and registered.
10) In the course of argument, learned counsel appearing for the State vehemently opposed the claim of anticipatory bail and contended that custodial interrogation of the appellant is necessary because he has forged several documents and also submitted false information to the Education Department while obtaining permission for running the school. It is further pointed out that he has also produced copies of false document. It is his claim that unless custodial interrogation of the appellant is granted, it would not be possible to seize all those documents from him. In other words, according to the State, the appellant has committed not only the offence of forgery in respect of private documents but also made false representations and committed offence of cheating by giving false information to the Education Department, thus committed an offence not only against the State but also against the public in general.
11) Like the counsel appearing for the State, Mr. Prashant Bhushan, learned counsel for the second respondent-Complainant by drawing our attention to various materials including corrections in the documents and several communications with the Educational Authorities as well as the letter dated 04.07.2012 of the Page 15 of 27 R/CR.MA/22857/2017 JUDGMENT Deputy Collector, Maval Sub-division, Pune addressed to Senior Police Inspector, Bundgarden Police Station, Pune submitted that in view of the conduct and involvement in various heinous offences, the appellant is not entitled indulgence by this Court for any relief.
12) As observed above, all the three counsel appearing for the parties took us through MoUs, lease deed and other correspondence/communications with the Educational Authorities as well as the report of the Deputy Collector, Pune, to Senior Police Inspector, Bundgarden Police Station, Pune. It is also relevant to point out that all these materials were scrutinized/analyzed by the Additional Sessions Judge, Pune and the High Court while considering the application for anticipatory bail. It is true that the parties have also approached the Civil Court for various reliefs. At the same time, as pointed out by counsel for the State and the second respondent-Complainant, considering the seriousness relating to corrections/additions/alterations made in various documents, information furnished to the Educational Authorities which, according to them, are incorrect, we are of the view that in order to bring out all the material information and documents, custodial interrogation is required, more particularly, to ascertain in respect of the documents which were alleged to have been forged and fabricated. In the said documents and other materials which are in the possession of the appellant and the allegation against him that he has made false representation before the Public Authority on the basis of those documents for obtaining necessary permission, as pointed out by the State, in order to secure possession of those documents, custodial interrogation is necessary. For this reason, the Additional Sessions Judge and the High Court rejected the claim for anticipatory bail.
13) In addition to the same, it is stated by the respondents that after the order of this Court dated 23.09.2011 granting interim protection, the appellant has misused his liberty in creating hindrance to the investigation and continues to scuttle it and also Page 16 of 27 R/CR.MA/22857/2017 JUDGMENT intimidating and pressurizing the Complainant as well as the prosecution witnesses.
14) In the light of the above discussion and in view of the mandate prescribed in Section 438 of the Code, we fully agree with the conclusion arrived at by the Additional Sessions Judge and the High Court in rejecting the relief of anticipatory bail. Consequently, the appeal fails and the same is dismissed. "
22. In Jai Prakash Singh vs. State of Bihar & Anr., AIR 2012 SC 1676, the Supreme Court has explained in details the parameters for grant of anticipatory bail. While holding that the anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has been falsely enroped in the crime, the Supreme Court observed as under;
"16. Ms. Kavita Jha, learned counsel appearing for the accused/respondents has vehemently advanced the arguments on the concept of life and liberty enshrined in Article 21 of the Constitution of India placing a very heavy reliance on the observations made by this Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors., AIR 2011 SC 312, and submitted that unless the custodial interrogation is warranted in the facts and circumstances of the case, not granting anticipatory bail amounts to denial of the rights conferred upon a citizen/person under Article 21 of the Constitution. We are afraid the law as referred to hereinabove does not support the case as canvassed by learned counsel for the accused-respondents. More so, the Constitution Bench of this Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, while summing up the law in para 368, inter- alia, held as under:
"Section 20(7) of the TADA Act excluding the application of Section 438 of the Code of Criminal Procedure in relation to any case under the Act and the Rules made thereunder, cannot be said to have deprived the personal liberty of a person as enshrined in Article 21 of the Constitution."Page 17 of 27
R/CR.MA/22857/2017 JUDGMENT (See also: Narcotics Control Bureau v. Dilip Prahlad Namade (2004) 3 SCC 619).
Therefore, we are not impressed by the submissions so advanced by learned counsel for the accused- respondents.
17. This Court in Siddharam Satlingappa Mhetre (supra) after considering the earlier judgments of this Court laid down certain factors and parameters to be considered while considering application for anticipatory bail : "122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over- implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness Page 18 of 27 R/CR.MA/22857/2017 JUDGMENT of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.
124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record."
18. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See: D.K. Ganesh Babu v. P.T. Manokaran & Ors., (2007) 4 SCC 434; State of Maharashtra & Anr. v. Mohd. Sajid Husain Mohd. S. Husain & Ors., (2008) 1 SCC 213; and Union of India v. Padam Narain Aggarwal & Ors., (2008) 13 SCC
305).
19. The case at hand, if considered in the light of aforesaid settled legal proposition, we reach an inescapable conclusion that the High Court did not apply any of the aforesaid parameters, rather dealt with a very serious matter in a most casual and cavalier manner and showed undeserving and unwarranted sympathy towards the accused.
21. In the facts and circumstances of this case, we are of the considered opinion that it was not a fit case for grant of anticipatory bail. The High Court ought to have exercised its extraordinary jurisdiction following the parameters laid down by this Court in above referred to judicial pronouncements, considering the nature and gravity of the offence and as the FIR had been lodged spontaneously, its veracity is reliable. The High Court has very lightly brushed aside the fact that FIR had been lodged spontaneously and further did not record any reason as how the pre-requisite conditions incorporated in the statutory provision itself stood fulfilled. Nor did the Page 19 of 27 R/CR.MA/22857/2017 JUDGMENT court consider as to whether custodial interrogation was required.
The court may not exercise its discretion in derogation of established principles of law, rather it has to be in strict adherence to them. Discretion has to be guided by law; duly governed by rule and cannot be arbitrary, fanciful or vague. The court must not yield to spasmodic sentiment to unregulated benevolence. The order dehors the grounds provided in Section 438 Cr.P.C. itself suffers from non- application of mind and therefore, cannot be sustained in the eyes of law.
23. This Court in one of its judgments in the case of State of Gujarat vs. Desai Jigishbhai @ Rajubhai Nagjibhai, Criminal Misc. Application No.23576 of 2015, decided on 4th February, 2016, observed as under;
"25. When a Court is given a discretion, the statute confers upon it the power to act according to what may appear to be best and appropriate under the circumstances of the particular case. The discretion is not willful or arbitrary, but is regulated by well-known and well established principles. In many circumstances, the Judge has a discretion as to whether, and in what manner, to exercise his powers. Commonly encountered instances of judicial discretion are the discretion as to grant of bail in a non-bailable offence. However, no discretion is absolute and there may be a successful appeal to the Court of Appeal in relation to the exercise of a judicial discretion if the appellant can show that the judge exercised his discretion under a mistake of law, or under a misapprehension as to the facts, or that he took into account irrelevant matters or gave insufficient weight, or too much weight, to certain factors or that he failed to exercise his discretion at all.
26. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows :
"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under (SCC p. 124, para 16) :Page 20 of 27
R/CR.MA/22857/2017 JUDGMENT "If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."
27. The presumption of innocence, by itself, cannot be the sole consideration for grant of bail. The presumption of innocence is one of the considerations, which the court should keep in mind while considering the plea for bail. The salutary rule is to balance the cause of the criminal defendant and the cause of public justice. Over solicitous homage to the criminal defendant's liberty can, sometimes, defeat the cause of public justice. Over a period of time, a feeling seems to exist in some quarters that the object of criminal law is to protect the rights of the accused and that the criminal justicing system is envisioned as a sentinel of the rights of the accused. It is not so. The law is the sentinel of rights of the society and of the individual. The rights of the criminal defendant will be as zealously guarded, as the cause of public justice. Pre- trial detention in itself is not an evil, nor opposed to the basic presumption of innocence. If liberty is to be denied to an accused to ensure maintenance of law and order and public health, then the courts should not hesitate in denying such liberty. Ensuring security and order including public health is a permissible non- punitive objective, which can be achieved by pre-trial detention. Where overwhelming considerations in the nature aforesaid require denial of bail, it has to be denied. "
24. In Ranjit Singh vs. State of M.P. & Ors., 2013 AIR SCW 5728, the Supreme Court observed as under;
"20. It needs no special emphasis to state that there is distinction between the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the Page 21 of 27 R/CR.MA/22857/2017 JUDGMENT ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. We have already referred to various paragraphs of the order passed by the High Court. We have already held that the learned trial Judge has misconstrued the order passed by the High Court. However, we may hasten to add that the learned single Judge has taken note of certain supervening circumstances to cancel the bail, but we are of the opinion that in the obtaining factual matrix the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the court below had enlarged the accused on bail on the strength of the order passed in M.Cr.C. No. 701 of 2013 remaining oblivious of the parameters for grant of bail under Section 439 Cr.P.C. It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course.
21. In Chaman Lal v. State of U.P., (2004) 7 SCC 525, this Court, while dealing with an application for bail, has stated that certain factors are to be borne in mind and they are: -
".... (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence,
(ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and
(iii) prima facie satisfaction of the court in support of the charge."
22. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, this Court, while emphasizing on the exercise of discretionary power generally has to be done in strict compliance with the basic principles laid down in plethora of decisions of this Court, has observed as follows: -
"9... among other circumstances, the factors which are to be borne in mind while considering an application for bail are:Page 22 of 27
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i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence;
ii) nature and gravity of the accusation;
iii) severity of the punishment in the event of conviction;
iv) danger of the accused absconding or fleeing, if released on bail;
v) character, behavior, means, position and standing of the accused;
vi) likelihood of the offence being repeated;
vii) reasonable apprehension of the witnesses being influenced;
and
viii) danger, of course, of justice being thwarted by grant of bail."
23. The said principles have been reiterated in Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and another, (2012) 9 SCC 446.
24. In this context, we may refer with profit to the recent pronouncement in Central Bureau of Investigation v. V. Vijay Sai Reddy, 2013 (7) Scale 15 wherein the learned Judges have expressed thus: -
"28. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/ State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.Page 23 of 27
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25. We repeat at the cost of repetition that the aforesaid aspects have not been kept in view by the learned Additional Sessions Judge and, therefore, we are obliged in law to set aside the order passed by him and we so do. In view of the extinction of the order granting bail, the appellant shall surrender forthwith to custody failing which he shall be taken to custody as per law. Liberty is granted to the appellant to move an application for grant of regular bail. Needless to say, on such application being moved, the same shall be considered on its own merits regard being had to the parameters which have been laid down in aforestated authorities.
29. In the case at hand, though such an order was not passed by the learned single Judge, yet the order passed by him was potent enough to create enormous confusion. And it has so happened. It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law. We are of the convinced opinion that the observations made by the learned single Judge while dealing with second application under Section 438 CrPC was not at all warranted under any circumstance as it was neither in consonance with the language employed in Section 438 CrPC nor in accord with the established principles of law relating to grant of anticipatory bail. We may reiterate that the said order has been interpreted by this Court as an order only issuing a direction to the accused to surrender, but as we find, it has really created colossal dilemma in the mind of the learned Additional Sessions Judge. We are pained to say that passing of these kind of orders has become quite frequent and the sagacious saying, "A stitch in time saves nine" may be an apposite reminder now. We painfully part with the case by saying so. "
25. In the impugned order, the court below has observed that the respondent No.2 herein, being the purchaser of the property could not be said to have forged the signature of the applicant herein. Prima facie, it appears that the court below gave a clean chit to the applicant on the ground that the applicant is a bonafide purchaser of the property for value Page 24 of 27 R/CR.MA/22857/2017 JUDGMENT without notice. On the contrary, the materials on record prima facie suggest the other way round. It is the case of the applicant that the respondent No.2 is a part and parcel of the entire conspiracy and has actively participated in the alleged offence. I could have cancelled the anticipatory bail outright, but I would like to give one chance to the court below to once again look into the matter in details and take a fresh decision applying the well settled parameters for grant of anticipatory bail. I am inclined to quash the order of grant of anticipatory bail and remit the matter to the court concerned for fresh hearing and fresh decision on the application.
26. My judgment should not be misunderstood or construed as laying down as a proposition of law that in the cases of forgery, anticipatory bail should not be granted. However, what I am trying to convey is that if an appropriate case is made out, then even if there are allegations of forgery, the court concerned may exercise its discretion in favour of the accused for the grant of anticipatory bail. It would all depend on the facts and circumstances of each case including the nature of the allegations and the materials on record. What is important is the proper discussion of the case of the prosecution, the allegations levelled against the applicant, the materials on record to connect the applicant with the alleged offence and the requirement or necessity of custodial interrogation.
27. The court is required to exercise its discretion upon examination of the facts and circumstances and to grant anticipatory bail " if it thinks fit". The expression " if it thinks fit" has been explained by the Supreme Court in Gurbaksh Singh Sibba & Ors. vs. State of Punjab, 1980 2 SCC 565 as Page 25 of 27 R/CR.MA/22857/2017 JUDGMENT follows;
""The expression "if it thinks fit", which occurs in Section 438(1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Section 437(1). We see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal."
28. Let me also refer to a decision of the Supreme Court in the case of Ravindra Saxena vs. State of Rajasthan, 2010 (1) SCC 684. In the said case, the Supreme Court observed that anticipatory bail may not be denied only because the case pertains to cheating or forgery of a valuable security. The Supreme Court also proceeded to observe that the defence of the accused while praying for anticipatory bail should also not be obliterated. I may quote the relevant observations as under;
"There is also no reason to deny anticipatory bail merely because the allegation in this case pertains to cheating or forgery of a valuable security. The defence put forward by the appellant cannot be obliterated at this stage itself."
29. Thus, what I am trying to convey is that each case must be examined thoroughly and if appropriate grounds are made out or an appropriate case is made out, then the court may be justified in granting anticipatory bail but only after throughly applying the parameters as laid down by the Supreme Court with regard to grant of anticipatory bail. For the purpose of Page 26 of 27 R/CR.MA/22857/2017 JUDGMENT grant of anticipatory bail unlike regular bail, the applicant- accused has to point out the exceptional circumstances or special circumstances to enable the court to exercise its discretion in his favour for the grant of anticipatory bail. Anticipatory bail should not be granted as a matter of rule on mere asking.
30. In the result, this application is allowed. The impugned order passed by the Addl. Sessions Judge, City Sessions Court, Court No.13, Ahmedabad in connection with a first information report registered with the Krishnanagar Police Station, District:
Ahmedabad bearing C.R. No.I-210 of 2017 granting anticipatory bail to the respondent No.2 is hereby quashed. The matter is remitted to the court of the Addl. Sessions Judge, City Sessions Court, Court No.13, Ahmedabad for fresh hearing and decision on the plea for anticipatory bail. The court below is directed to hear the parties concerned at the earliest and pass an appropriate fresh order in accordance with law. It is clarified that it shall be open for the court below, while deciding the matter afresh, to take into consideration the subsequent developments, if any, in the course of the investigation. It is further clarified that till an appropriate order is passed by the court concerned pursuant to the direction issued by this Court, the police shall not arrest the respondent No.2. However, on the date of pronouncement of the order, the respondent No.2 shall personally remain present before this Court.
Direct service is permitted.
(J.B.PARDIWALA, J) Vahid Page 27 of 27