Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 1271 (RAJ)

Vijay Mehta v. State of Rajasthan

2000-10-17

SHIV KUMAR SHARMA

body2000
JUDGMENT 1. - Both these bail petitions preferred by Vijay Mehta and Rajeev Mishra, under section 438 Cr.RC. relate to FIR No. 140/2000 registered at Police Station, Bani Park, Jaipur under sections 406, 418, 423, 465, 467, 469 and 120 B of the Indian Penal Code, therefore I propose to dispose of the instant bail petitions by a common order. 2. Learned Senior Counsel Shri S.R. Bajwa, canvassed that the only non-bailable offence in the instant case is under section 406 IPC and it is not exfacie made out even if the face value of the entire facts is accepted. It is contended that Vijay Mehta is authorised seller and Rajeev Mishra is bonafide purchaser of the property in question and the complainant is also accomplice in the matter. During the course of arguments I was taken through the various documents and attempt was made to establish that this is a fit case in which the provisions under section 438 Cr.PC. are attracted and the petitioners should be enlarged on anticipatory bail. Reliance was placed by both the sides on a Constitution Bench decision in case of Gurbaksh Singh v. State of Punjab reported in 1980 (2) SCC 565 ). 3. Elaborating the arguments Mr Bajwa urged tat three criminal complaints were lodged Garg against the complainant and others and it does not lie in the mouth of the complainant to say before the investigating agency that no authority vested with the petitioner Vijay Mehta to parcel the land of the firm into plots and then to sell them off. The complainant has tried to project that the selling of the plots took place without his knowledge. The power of attorney of which description has been given clearly betrays that the petitioner Vijay Mehta had authority to sell off the immovable property including the land of the firm, at the same time the said document also makes a strong reflection on the fact that the complainant had complete knowledge about the development in question. It was further contended that by way of letter dated March 17, 1999 the Rajasthan State Pollution Control Board had brought to the notice of the firm that the Board could not grant consent any more to the firm to operate the Ice Factory located on its land as the same was within the residential area. It was further contended that by way of letter dated March 17, 1999 the Rajasthan State Pollution Control Board had brought to the notice of the firm that the Board could not grant consent any more to the firm to operate the Ice Factory located on its land as the same was within the residential area. Subsequent to the receipt of the said letter, there were parleys between the partners of the firm as to what should be done with the land of the partnership firm. Heavy amount had been invested by all the partners in the partnership firm. Thereafter after the information given by the Board, the partners were anxious qua the business enterprise of the firm. It was then suggested by Sukhanis that the piece of land belonging to M/s. Agarwal Ice Factory, the partnership firm should be sold off after parcelling the same into plots and for that purpose the petitioner Vijay Mehta was deputed for the job. In this respect an application under Rule 5 Sub Rule (2) of the Land Conversion Rules was filed before the Minister concerned, at the instance of one of the partners Shri Rajkumar Bhatia. It was further contended that the complainant received Rs. 5,00,000/- (rupees Five lacs by way of cash on July 13, 2000 from the firm as his share in the sale proceeds of the plots of the partnership firm and other two partners Smt. Kamla Sukhani arid Ramesh Sukhani also received Rupees Ten lacs. The complainant also received Rupess Five lacs by way of cash on July 13, 2000 from the firm as his share, goes a long way to discredit the veracity of the allegations. 4. As many as 25 documents were placed before me on behalf of the petitioners. 5. In support of the arguments advanced on behalf of Rajeev Mishra, it was canvassed that the petition Rajeev Mishra is innocent as he is bonafide purchaser of the plot for consideration and he has nothing to do with inter se civil disputes between the partners of the partnership firm. Rajeev Mishra purchased the plot in question by way of a registered document, namely said deed executed before the Sub Registrar, Jaipur City, Jaipur as he had no reason to doubt the authority of the petitioner Vijay Mehta. As all the documents were shown to Rajeev Mishra which reflected his competence to execute the sale deed. Rajeev Mishra purchased the plot in question by way of a registered document, namely said deed executed before the Sub Registrar, Jaipur City, Jaipur as he had no reason to doubt the authority of the petitioner Vijay Mehta. As all the documents were shown to Rajeev Mishra which reflected his competence to execute the sale deed. The said documents were also submitted before the Sub Registrar for perusal and satisfaction of the said officer. The details of the payment through cheques have also been placed before me and it was also contended that Bheem Sen Garg. and Mohan Sukhani appointed Shri Mukund Goyal, Shri Jagdishji Poddar, Shri Badriji Modi and Shri Billuji Agarwal as the sole arbitrators to hear, evaluate and pass a decision between the partners and it was decided by the complainant that he would withdraw all civil and criminal cases. 6. On the other hand, the learned Public Prosecutor, Shri Rajesh Goswami and Shri Jagdeep Dhanker, Senior Counsel appearing on behalf of the complainant vehemently opposed the bail applications. 7. Mr. Dhankar also placed various documents during the course of arguments and it was canvassed that in the retirement cum partnership deed a forgery was committed in para No. 16. It was also contended that Rajeev Mishra is not a bonafide purchaser and my attention was drawn towards the statement of accounts for the period 1.1.1996 to Sept. 2000 of Agarwal Ice Factory. Shailendra Garg, Garment Craft, B.S Garg, Mohan Finvest, and Rajeev Mishra made transactions on July 19, 2000. It was also contended that the disputed land was allotted for a specified purpose of manufacturing Ice and Cold Storage under the provisions of Rajasthan Industrial Areas Allotment Rules, 1959. The lease deed was executed on May 17, 1991 in favour of M/s. Agarwal Ice Factory, Jaipur as first part of Governor of the State of Rajasthan as second part. In para No. 6 of the said lease deed it was stated that the lessee shall not sub-let under-let or sell its lease hold rights under the lease deed without the written consent of the lessor. In para No. 6 of the said lease deed it was stated that the lessee shall not sub-let under-let or sell its lease hold rights under the lease deed without the written consent of the lessor. In condition No. 3 it was mentioned that the lessee has already set up on the said plot of land the unit for manufacturing Ice which land has been leased to him buy the lessor and the lessee will set up a Cold Storage within a period of two years from the date of 12th Feb. 1990 and in case of his failure to do the said plot shall revert to the lessor. In condition No. 9 it was stated that in case any default is made by the lessee is in respect of any of the terms and conditions aforesaid the plot or land shall revert to the lessor. Under these circumstances it was argued that the petitioner Vijay Mehta had no authority to sell the land in question to Rajeev Mishra. 8. I have reflected over the rival submissions and carefully scanned the material placed before me. 9. In Gurubux Singh Sibbia v. State of Punjab (supra) their Lordships of the Supreme Court indicated in para No. 13 thus : "13....... The High Court and the Court of Sessions to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in section 437 or which are generally considered to be relevant under section 439 of the Code." In para 17 of the judgment, their Loarships observed thus : "17, How can the court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail? And will it be correct to say that blatantness of the accusation will suffice for rejecting bail, even if the applicant's conduct is painted in colours too lurid to be true? The eight proposition framed by the High Court says : "Mere general allegations of mala fides in the petition are inadequate. And will it be correct to say that blatantness of the accusation will suffice for rejecting bail, even if the applicant's conduct is painted in colours too lurid to be true? The eight proposition framed by the High Court says : "Mere general allegations of mala fides in the petition are inadequate. The Court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless." Does this rule mean, and that is the argument of the learned Additional Solicitor General, that anticipatory bail cannot be granted unless it is alleged (and naturally also shown, because mere allegations is never enough) that the proposed accusations are malafide? It is understandable that if mala fides are shown, anticipatory bail should be granted in the generality of cases. But it is not easy to appreciate why an application for anticipatory bail must be rejected unless the accusation is shown to be mala fide. This, truly, is the risk involved in framing rules by judicial construction. Discretion therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the Higher courts. The safety of discretionary power lies in this twin protection which provides a safeguard against the abuse." In Para 31 of the said judgment, their Lordships of the Supreme Court propounded thus: "31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some other ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by malafides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by malafides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are, several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with the and the larger interests of the public or the State are some of the public or the State" are some of the considerations which the court has to keep in the mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh (1962) 3 SCR 622 : ( AIR 1962 SC 253 ) which, though was a case under the old section 498 which corresponds to the present section 439 of the Code. It is paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail." 10. While exercising my judicial discretion I have carefully examined the nature and seriousness of the proposed charges. I do not propose to dwell onto the merits and demerits of the case as it may hamper the investigation, but I am satisfied that this is not a fit case for grant of anticipatory bail to the petitioners. 11. The bail applications stands dismissed. *******