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2010 DIGILAW 579 (GUJ)

H. N. Chavda v. State of Gujarat

2010-12-08

ANANT S.DAVE

body2010
JUDGMENT (1) The applicant apprehending his arrest in connection with FIR lodged with Gujarat University Police Station, Ahmedabad City as C.R. No.I-79/2008 for the offences punishable under Sections 419. 414, 466, 468, 471, 474, 120-B of Indian Penal Code, has filed this application under Section 438 of the Code of Criminal Procedure, 1973. (2) At the outset, this is the second application under Section 438 of the Code of Criminal Procedure, 1973 before this Court in view of rejection of Criminal Misc. Application No.7772 of 2010 by this Court (Coram: Hon'ble Mr. Justice Z.K. Saiyed). The applicant is a Government servant and is an officer in the education department and at relevant point of time he was posted as Secretary to the Gujarat Secondary and Higher Secondary Education Board (for short "the Board") established under the Gujarat Secondary and Higher Secondary Education Act, 1972. The Board undertakes Secondary and Higher Secondary Certificate Examinations every year as per the schedule fixed. Initially, the FIR came to be lodged at the Gujarat University Police Station, Ahmedabad City, on 14.3.2008 for the offences punishable under Sections 419 and 114 of IPC and as per the above FIR, students one Master Harsh Pravinbhai Kotak and one Miss Komal Sanjaybhai Patel appearing in Standard 12 examination Science stream were not able to write their papers and requested for assistance of a writer and accordingly students were permitted to have an assistance of one Mr.Hriday Prashantbhai Archarya studying in Standard 11 in science stream in Swastik Shishu Vihar Secondary School, Sardar Patel Stadium, Ahmedabad and Miss Komal S. Patel who claimed to have fractured her right hand was provided one Mr. Parth Mukeshbhai Pandya also studying in the same standard and in the same school. While, on 14th March, 2008, on checking by a squad instead of Mr. Hriday Prashantbhai Archarya, Dharmik Ambalal Patel, a writer of Master Harsh Pravinbhai Kotak and in case of Miss Komal Patel, one Mr. Kevin Paragbhai Desai instead of Mr. Parth Mukeshbhai Pandya were writing papers. Thus, writer students provided to assist and write the examination of Master Harsh Kothak and Miss Komal Patel, were not assisting or writing the papers but some other students were found on the day when checking squad inspected the examination hall. It appears that upon preliminary investigation, I.O. submitted a report on 21.3.2008 and requested to add offences punishable under sections 464. It appears that upon preliminary investigation, I.O. submitted a report on 21.3.2008 and requested to add offences punishable under sections 464. 468, 471, 474 and 120-B of IPC. Later on. after arresting the students another report dated 16.9.2008 was submitted for deleting sections 464, 468, 471, 474 and 120-B of the IPC. Subsequently, in view of inconsistency of medical reports submitted by both students and certificates issued by the concerned Orthopedic Surgeon, once again police officer requested that Sections 464, 468, 471, 474 and 120-B be added and however, the investigation was transferred to the crime branch for further investigation and after collection of evidence, recording statements of about 11 persons, it was found that there was conspiracy to introduce dummy writers. As per the report submitted on 10.3.2010, police officer of Crime Branch, Ahmedabad, requested to add the offences punishable under Sections 466, 468 and 471 of IPC. Thus, on 10th March, 2010, offences were on the record punishable under Section 466, 468, 471 and 120-B of IPC. That, in the anticipatory bail application which was preferred and dismissed on 5.8.2010 (Coram: Hon'ble Mr. Justice Z.K. Saiyed) being Criminal Misc. Application No.7772 of 2010, all contentions available on facts were taken up including reliance placed in the case of State of Gujarat v. Deepak Jaswantlal Sheth [ 1998 (3) GLR 2240 ] and after considering material on record in paras 6 and 7, the learned single Judge has observed as under : "6.I have considered the rival submissions made by the learned advocates appearing for the parties and perused the papers produced on record and visitor register- From the statements of the witnesses, it is prima-facie established by the prosecution that FIR is not encyclopedia and the question of alibi cannot be considered during the hearing of bail application. From the documents produced on record, it appears that the present applicant is involved in this offence. 7. It is true that once the conspiracy to commit any illegal act is proved, the act of one conspirator becomes the act of another. I have also found from the papers that there was a meeting of mind to commit the offence. Conspiracy can be inferred even from the circumstances giving rise to exclusive or irresistible inference on an agreement between two or more persons to commit the offence. I have also found from the papers that there was a meeting of mind to commit the offence. Conspiracy can be inferred even from the circumstances giving rise to exclusive or irresistible inference on an agreement between two or more persons to commit the offence. I have also found from the papers that from the conduct of the present applicant and others, it is an admitted fact that the prosecution has proved prima-facie that there was a conspiracy. In view of the above, I am of the opinion that there is some substance in the submission of learned APP Mr. Trivedi that present applicant accused is an influential personality and he can be tampered with the evidence if anticipatory bail is granted to him. I have also gone through the decision cited by Mr. Mangukia learned advocate appearing for the applicant. In the said decision, this Court has observed that the plea of alibi cannot be looked into by Court at the time of consideration of the question of bail. Considering the facts and circumstances of the case and the papers produced on record, it appears that the prosecution has prima-facie established the case against the present applicant-accused. (3) MR. B.M.Mangukiya, learned counsel for the applicant submits that, in view of the decision of the Apex Court in the case of Ravindra Saxena v. State of Rajasthan [ (2010) 1 SCC 684 ] : ( AIR 2010 SC 1225 : 2010 AIR SCW 530), wherein it is held that anticipatory bail can be granted at any time so long as the applicant has not been arrested, anticipatory bail cannot be denied merely because allegations of cheating and forgery have been made. It is further submitted that there is no bar for this Court to exercise powers under Section 438 of the Code even if on earlier occasion the request of anticipatory bail is rejected. So far as the proposition of law laid down as above and contended, this Court is in full agreement and, therefore, this case is considered on merit. 4.1. According to MR. B.M. Mangukiya, learned counsel for the applicant, the applicant who was serving as Secretary of the Board is falsely implicated and there are no allegations in the FIR lodged on 14.3.2008 and it had only mentioned about incident of dummy writers and certain other irregularities which took place in the examination hall. 4.1. According to MR. B.M. Mangukiya, learned counsel for the applicant, the applicant who was serving as Secretary of the Board is falsely implicated and there are no allegations in the FIR lodged on 14.3.2008 and it had only mentioned about incident of dummy writers and certain other irregularities which took place in the examination hall. It is further submitted that except the visit of the applicant on 12.3.2008 on the day of the incident on 14.3.2009 the applicant was nowhere present in the examination hall and time and again the applicant has presented himself before the, investigating officer, assisted and co-operated and, therefore, the applicant being a Government servant available for investigation be granted anticipatory bail. 4.2. Learned counsel further emphasized that all other co-accused have been enlarged either under Section 439 or under Section 438 of the Code and on the ground of parity also the applicant deserves equal treatment at the hand of this Court and this aspect may also be borne in mind while exercising powers under Section 438 of the Code and benefit be extended to the applicant while granting anticipatory bail. It is also submitted that there is no necessity or any requirement of custodial interrogation of the applicant since the investigating authority had failed to collect any material even prima facie connecting the applicant with the crime and at the most some statements which have been made about role of the applicant are of accused or persons who have grudge against the applicant to involve the applicant in the crime. It is next contended that none of the ingredients of the offence registered against the applicant is attracted qua offences under Sections 419, 466, 467, 471, 474 of the IPC and learned counsel has taken this Court to the definition and language of the above sections and submitted that considering the above, by no stretch of imagination it can be said that the applicant has committed any crime. Learned counsel has also referred to the order dated 12.5.2010 passed in Criminal Misc. Application No. 4743 of 2010; the order dated 17.9.2010 passed in Criminal Misc. Learned counsel has also referred to the order dated 12.5.2010 passed in Criminal Misc. Application No. 4743 of 2010; the order dated 17.9.2010 passed in Criminal Misc. Application No.1050 of 2010 by learned single Judge of this Court and other such orders and contended that after considering the record prima facie co-ordinate Bench of this Court was satisfied and powers have been exercised in favour of the co-accused and they were enlarged on bail by imposing suitable conditions. It is also submitted that in view of the law laid down by the Apex Court in the case of Mohd. Ibrahim and Ors. v. State of Bihar and Anr. [ (2009) 8 SCC 751 ]: (2010 Cri LJ 2223 : 2010 AIR SCW 405), State of Gujarat v. Deepak Jaswantlal Sheth [ 1998 (3) GLR 2240 ]: (1999 Cri LJ 162) (Guj), Bharat Chaudhary and Anr. v. State of Bihar and Anr. [ (2003) 8 SCC 77 ] : (2003 Cri LJ 5038 : AIR 2003 SC 4662 ), this Court may be pleased to bear in mind the principles governing grant of anticipatory bail namely, gravity of offence, prima facie ingredients, status and reputation of the persons seeking bail, undue harassment that may cause, the custodial interrogation etc. and the applicant be enlarged on bail. 4.3. The learned counsel has also vehemently contended that the hue and cry created by the media need not influence the court and justice be done to the applicant and if the record pertaining to the visit of the applicant on 12th March, 2008 and entries made in the register book of the various examination centre are seen, it would clear the issue that the allegations levelled against the applicant are baseless. It is also submitted that the complaint was filed in March, 2008 and after a period of 2 1/2 years of investigation the applicant has neither tried to influence the investigation nor in any manner tried to tamper any kind of material and basic allegations remained against the parents of the students, students and dummy writers and at the most the tutor and doctors who had issued certificates, while the applicant had not played any role in commission of the crime, therefore by imposing suitable conditions, the applicant may be enlarged on bail. 4.4. 4.4. Lastly, it is submitted that the applicant has fundamental right under Article 21 of the Constitution of India and his freedom and liberty may not be curtailed at the behest of shaky investigation which is based on no material. Once the applicant is arrested, it may attach social stigma and also lead to departmental proceedings and, therefore, the applicant be considered for discretionary relief under Section 438 of the Code. (4) MR. L.R. Pujari, learned APP, for the respondent-State submits that ordinarily this second application for anticipatory bail need not be entertained by this Court exercising powers under Section 438 of the Code since it was rejected on merit by assigning reasons vide order dated 5.8.2010 and there is no change of fact or law and enlarging other accused on regular bail cannot have any bearing on the present case, when the officer of the rank of Class-I performing duties as a Secretary of the Board and also responsible to conduct free and fair examination himself is involved in committing irregularities as per the offence registered under Sections 419, 414, 466, 468, 471, 474, 120-B of Indian Penal Code. According to learned APP, all the above offences have severe consequences and allegations are supported by the materials collected during investigation and about seven to eight witnesses have in no uncertain terms stated presence of the applicant on the day of alleged irregularities and three persons have so stated that the applicant had introduced one Bhagwatsinh Rawat a tutor who was responsible for dictating answers of questions to writers of the students namely Master Harsh Kotak and Miss Komal Patel. It is further submitted that all these above offences are to be read and considered along with Section 120-B of the IPC and there being prior meeting of mind and conspiracy to execute the plan so hatched by all accused together ultimately made a false claim before the Board about deformities or disability to write the examination and requested that assistance of writers by getting medical certificates of such disabilities and ultimately it was found on record that none of the students who sought for assistance of writer had any kind of deformity and writers were aided and assisted by the present applicant as a Secretary of the Board, who was found present on the day when the examination for standard 12 was conducted and helped in committing crime as above. It is further submitted that the investigation is yet not complete and the authority has to find out various other materials, viz. badges given to a concerned person for entering into examination hall and mobile telephones made on the day to various persons besides entry made by the applicant in the Register book of the school also to be confirmed by securing presence of the applicant. Not only that but the applicant has evaded his arrest and procedure is followed of issuance of warrant under Section 70 of the Code and lastly the learned Metropolitan Magistrate, Court No. 11 has issued summons under Section 82 of the Code and the Division Bench of this Court headed by Hon'ble the Chief Justice has passed various orders with regard to nature and method of investigation from time to time and periodical reports are also submitted accordingly. It is further submitted that powers under Section 438 of the Code is to be exercised only if this Court thinks fit that such power is warranted and there cannot be any straight jacket formula for exercising the powers under Section 438 of the Code. Having heard learned counsels for the parties, perusal of the record, statements of various persons and witnesses shown by learned APP by producing the file on record reveal that the applicant, a responsible officer and in-charge of free and fair examination of Secondary and Higher Secondary examination, is prima facie involved in the offences so registered. Having heard learned counsels for the parties, perusal of the record, statements of various persons and witnesses shown by learned APP by producing the file on record reveal that the applicant, a responsible officer and in-charge of free and fair examination of Secondary and Higher Secondary examination, is prima facie involved in the offences so registered. It is not a simple case of connivance but an active and overt part is taken as per the reading of the statements would reveal that the applicant has introduced a tutor known to the students to answer the questions of science papers. 6.1. Recently, the Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. decided on 2nd December, 2010 in Criminal Appeal No.2271 of 2010 (reported in AIR 2011 SC 312 : AIR 2011 SC (Cri) 308) has referred to earlier decision of the Apex Court including the decision of Constitution Bench in Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab [ (1980) 2 SCC 565 ] : (1980) Cri LJ 1125 : AIR 1980 SC 1632 ) and in paras 119, 121 and 122 held as under : "119. This Court in the Sibbia's case (supra) laid down the following principles with regard to anticipatory bail: a] Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India. b] Filing of FIR is not a condition precedent to exercise of power under section 438. c] Order under section 438 would not affect the right of police to conduct investigation. d] Conditions mentioned in section 437 cannot be read into section 438. e] Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only". Powers are discretionary to be exercised in light of the circumstances of each case. f] Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re-examined after hearing. Such ad interim order must confirm to requirements of the section and suitable conditions should be imposed on the applicant. 121. No inflexible guidelines or strait- jacket formula can be provided for grant or refusal of anticipatory bail. Thereafter, notice must be issued forthwith and question ought to be re-examined after hearing. Such ad interim order must confirm to requirements of the section and suitable conditions should be imposed on the applicant. 121. No inflexible guidelines or strait- jacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Session to exercise their jurisdiction under section 438 of the Code by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 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 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. The court must also clearly comprehend the exact role of the accused in the case. The cases in which 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 witnesses 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 of the prosecution, in the normal course of events, the accused is entitled to an order of bail". Thereafter, the Apex Court in paras 133 and 134 held as under: "133. In our considered view, the Constitution Bench in Sibbia's case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under section 438 Cr.P.C. A number of judgments have been referred to by the learned counsel for the parties consisting of Benches of smaller strength where the courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the court granting the anticipatory bail should leave it to the regular court to deal with 69 the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbia's case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under section 438, Cr.P.C. The Constitution Bench has aptly observed that "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 or the Court of Session but, for the purpose of limiting it". 134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia's case (supra), it would not be proper to limit the life of anticipatory bail. 134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia's case (supra), it would not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of section 438, Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia's case (supra) clearly observed that it is not necessary to re-write section 438 Cr.P.C. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under section 438 Cr.P.C. granting bail cannot be curtailed." The Apex Court also considered earlier decisions of the various Benchs and referred to those decisions in paras 135 and 136, which reads as under:- "135. The ratio of the judgment of the Constitution Bench in Sibbia's case (supra) perhaps was not brought to the notice of their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, 1996 Cri LJ 1368 : AIR 1996 SC 1042 ; K. L. Verma v. State and another, (1998) 9 SCC 348 ; Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and another ( AIR 2005 SC 498 ) (supra). 136. In Naresh Kumar Yadav v. Ravindra Kumar (2008) 1 SCC 632 : ( AIR 2008 SC 218 : 2007 AIR SCW 667). a two-Judge Bench of this Court observed "the power exercisable under section 438 Cr.P.C. is somewhat extraordinary in character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and the Constitution Bench's decision in Sibbia's case (supra)." The Apex Court in paras 137 and 138 reiterated as under:- "137. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under section 438, Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 138. Similarly, the discretion vested with the court under section 438, Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia's case (supra). These judgments and orders are also contrary to the legislative intention. The Court would not be justified in re-writing section 438, Cr.P.C." The Apex Court also examined issue of per incuriam and finally in paras 149 and 150 reiterated as under:- "149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three Judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam. 150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three Judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength." (5) KEEPING the above broad aspects in mind what is necessary for this Court is to see that whether facts of this case are such which would lead this Court to think it fit to exercise powers under Section 438 of the Code. As stated earlier initially there is involvement of the applicant while introducing the tutor one Bhagwatsinh Rawat to write the examination while answering the questions; secondly, as found by my predecessor Judge (Coram: Hon'ble Mr. As stated earlier initially there is involvement of the applicant while introducing the tutor one Bhagwatsinh Rawat to write the examination while answering the questions; secondly, as found by my predecessor Judge (Coram: Hon'ble Mr. Justice Z. K. Saiyed) that prima facie material is available about prior meeting of minds and all accused have entered into a conspiracy to see that students namely, Master Harsh Kotak and Miss Komal Patel successfully make attempt and write the examination though there were no injuries, deformities or disabilities for seeking assistance of the writers, medical certificates were obtained; thirdly, certificates issued by the Orthopaedic Surgeon had not mentioned correct deformities even if there was any and such certificates, prima facie appeared to have been issued to help the students to seek assistances of the writers, fourthly, writer students were provided from one school i.e. Swatik Shishu Vihar Secondary School; fifthly, managing trustee/administrator of the Swastik Shishu Vihar Secondary School is yet not arrested. Uptil now investigation agency has arrested parents of the students, tutor and the doctor which reveal that there is a prima facie case and statements of the informant Atul Nareshbhai Shah and Kalpana Shankarlal Patel and other persons and report of Mr. P. Paneervel, high ranking officer also reveal presence of the applicant on the day of incident. (6) In the above circumstances, when further material is yet to be obtained, it cannot be said that custodial interrogation of the applicant is not necessary. So far as ground of parity, in view the order dated 12.5.2010 passed in Criminal Misc. Application No.4743 of 2010, is concerned, admittedly, after police officer of Crime Branch added Sections 466, 467, 471 and 120-B of the IPC on 10.3.2010, factually noting is to the extent that offences were punishable under Sections 419 and 114 are registered for which punishment is prescribed for a period of three years. Be that as it may be, the fact remains that the offences have been registered not only under Sections 419 and 114 but also 466, 471,474and 120-B. So far as the order dated 17.9.2010 passed in Criminal Misc. Be that as it may be, the fact remains that the offences have been registered not only under Sections 419 and 114 but also 466, 471,474and 120-B. So far as the order dated 17.9.2010 passed in Criminal Misc. Application No. 10501/2010 is concerned, the argument of the learned counsel was that on two occasions, offences under Sections 466, 468 and 471 were subsequently withdrawn and even if those sections were read as they were then also no ingredients of forgery would be attracted and by relying on decision in Mohd. Ibrahim and Ors. v. State of Bihar and Anr. (2010 Cri LJ 2223 : 2010 AIR SCW 405) (supra) and the fact that other co-accused were enlarged on bail, the learned Judge also granted bail. 9.1. The applicant has up till now successfully avoided the arrest and as a last recourse action under Sections 70 and 82 of the Code is initiated and being a high ranking officer is likely to influence the investigation. (7) Considering the above aspects and law laid down by the Apex Court, prima facie:- (a) the applicant, the custodian and in-charge officer for free and fair examination for Higher Secondary Stream is alleged to have indulged into irregularities and illegally by polluting stream of education system. (b) the exact role of the accused applicant of introducing a tutor known to the students appearing in examination is defined. (c) that number of items are to be recovered including the badges and visit books in which entries have been made by the applicant. (d) that up till now, the applicant has avoided the arrest and, therefore, he is likely to flee course of justice and also easily can influence the witnesses and may also tamper with record and above apprehension cannot be ruled out in view of issuance of warrant under Sections 70 and 82 of the Code. (e) besides, the case is also required to be viewed in light of Section 120-B of IPC. (8) So far as in the case of Moh. Ibrahim and Ors. (e) besides, the case is also required to be viewed in light of Section 120-B of IPC. (8) So far as in the case of Moh. Ibrahim and Ors. (2010 Cri LJ 2233 : 2010 AIR SCW 405) (supra) is concerned, it was a case under Section 482 of the Code where essentially the dispute had arisen which was of a civil nature about preparation of false documents and what could be the ingredients of Sections 415, 420, 463 and 467 and the Apex Court had quashed the complaint in question. However, the rational and logic and what is held by the Apex Court cannot be applied straightaway to the application under Section 438 of the Code which has a distinct character of its own and, therefore, on the aspect of parity, the applicant cannot be extended any benefit on the above ground also. Considering the material on record and in view of the fact that according to this Court there is no change either on fact or any law coupled with whatever I have observed earlier, this second application for anticipatory bail is dismissed. Rule is discharged. Petition dismissed.