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2011 DIGILAW 198 (GUJ)

Pravinbhai Kashiram Patel v. State of Gujarat

2011-03-11

Z.K.SAIYED

body2011
JUDGMENT (1) BY way of present application filed under Sections 439(2) and 482 of the Code of Criminal Procedure, 1973, the applicant-original complainant has inter alia payed to quash and set aside the order dated 15th January 2011 passed by the learned 2nd Additional Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application No.26 of 2011 and thereby prayed to cancel the anticipatory bail granted to the respondent No.2 vide order under challenge. (2) AS per the case of the applicant, the applicant is the complainant in the complaint being C.R. No.I-213 of 2008 registered with Sanand Police Station against the respondent No.2 for the offences punishable under Sections 143, 147, 149, 325, 506(1) and 427 of the Indian Penal Code and also under Section 135 of the Bombay Police Act in connection with the incident which took place on 11th September 2009 in respect of the applicant's land situated at Survey No.166, Village-Nidharad, Taluka-Sanand, District- Ahmedabad. AS per the case of the applicant, at a subsequent stage, charge of the offence punishable under Sections 395 and 397 of the Indian Penal Code have also been added against the accused persons. It is also the case of the applicant that Investigating Agency has also given application to add other Sections including Section 120-B of the Indian Penal Code. The applicant hereby challenges the order dated 15th January 2011 passed by the learned 2nd Additional Sessions Judge, Ahmedabad (Rural) granting anticipatory bail to the respondent No.2. The applicant has opposed the said anticipatory bail by filing a detailed reply. It is the case of the applicant that however, without considering the reply filed by the present applicant, investigating papers, various status reports, which shows that the respondent No.2 is absconding and without considering the fact that the respondent No.2 is absconding since 2008 and there is strong prima facie case against the respondent No.2, the learned trial Judge, considering the irrelevant factors and ignoring the settled principles for grant of anticipatory bail, granted anticipatory bail to the respondent No.2. (3) As per the case of the applicant, a tenancy case was filed before the Mamlatdar and ALT, Sanand wherein a forged, fabricated and fraudulent panchnama was submitted by one of the co-accused and on the basis of the said panchnama dated 15th April 2008, the Mamlatdar and ALT directed the parties to the tenancy case to maintain status quo; however, the said order of status quo was not extended. It is the case of the applicant that the respondent No.2 in connivance with the Talati of village Nidharad, prepared the said panchnama and has signed the same as witness to the same. (4) It is the case of the applicant that he is one of the joint owners along with his family members of the land bearing Survey No. 166 situated at Village Nidhrad, Taluka- Sanand, District-Ahmedabad since 1994. IT is also the say of the applicant-original complaint that one Shri Babulal Jamnadas Patel, who is the sitting MLA of the Ruling Party, had tried to grab the land of the poor farmers, including the applicant and other complainant; and a group of matters with regard to the same was pending before this Court. IT is also the case of the applicant that various complaints have also been registered in respect to the said group of matters against Shri Babulal Jamnadas Patel and others. IT is also the case of the applicant-original complainant that Shri Babulal Jamnadas Patel under an apprehension of being required to pay Rs. 15 to 20 crores at the market value of the said plots for the said fraud and hence, with a view to take revenge and to develop a sense of fear amongst the people, Shri Babulal Jamnadas Patel hatched the entire conspiracy to grab the land and harassed the complainant and further assaulted the complainant and his family on 11th September 2008. As per the case of the applicant, the applicant and his family members were assaulted by a mob of more than 70 people with deadly weapons like scythe (Dhariya), pipes and sticks and they were grievously beaten and caused severe injuries to the applicant-complainant and other persons. As per the case of the applicant, the applicant and his family members were assaulted by a mob of more than 70 people with deadly weapons like scythe (Dhariya), pipes and sticks and they were grievously beaten and caused severe injuries to the applicant-complainant and other persons. IT is also the case of the applicant that as the complaint of the complainant side was not registered, family members of the applicant immediately approached this Court with special permission in the evening by way of filing Special Criminal Application No.1821 of 2008 and only after approaching this Court, the Police Inspector, Sanand Police Station, registered the complaint being I-C.R. No.213 of 2008 at midnight. Heard Mr.Yatin Oza, learned senior counsel with Ms.R.I. Fidelis, learned counsel for the applicant, Mr.H.L. Jani, learned Additional Public Prosecutor for respondent No. 1-State and Mr.Parthiv Shah, learned counsel for the respondent No.2. (5) Mr. Oza has argued that the learned trial Judge, without application of mind, has passed the order dated 15th January 2011 granting anticipatory bail to the respondent No.2. He has also contended that the learned trial Judge has not considered the seriousness of the case. MR. Oza has also contended that the present respondent No.2 is the main conspirator. The respondent No.2 has tampered with the Government record. MR. Oza has also contended that the respondent No.2 was absconder and report to that effect was also filed by the Investigating Officer. MR.Oza has also contended that the panchnama dated 15th April 2008 is the root of the matter. He has contended that the respondent No.2 in connivance with the Talati of village Nidharad prepared the said panchnama and has signed the same as a witness. MR.Oza has also contended that the panchnama dated 15th April 2008 is the beginning of the conspiracy. MR.Oza has contended that looking to the conduct of the present respondent No.2, it appears that the respondent No.2 along with other co-conspirators, committed grave offence of grabbing land of farmers including the present applicant. MR.Oza has also contended that the respondent No.2 is relative of other co-accused. He has also read the affidavit of the Investigating Officer, which is produced before the learned trial Judge, and argued that the present respondent No.2 was not interrogated qua his signature on the panchnama. MR.Oza has also contended that the respondent No.2 is relative of other co-accused. He has also read the affidavit of the Investigating Officer, which is produced before the learned trial Judge, and argued that the present respondent No.2 was not interrogated qua his signature on the panchnama. He has also contended that if during the investigation and interrogation something is not found out against the present respondent No.2, then the Investigating Officer can file a report under Section 169 of the Code of Criminal Procedure, 1973. He has also contended that in the present case, custodial interrogation is necessary. He has also contended that the present respondent No.2 was absconder for more than two years and even warrant under Section 70 of the Code of Criminal Procedure was also issued against the respondent No.2. He has also read the date of panchnama, i.e. 15th April 2008, and argued that for the anticipatory bail order, this is a good ground to cancel the bail. He has also read the contention of the panchnama and argued that from the first line of the said panchnama, it is not brought on record when the said panchnama was prepared. He has also contended that from the papers of the Mamlatdar, no signature is made by Shri Mahipatsinh. He has also read the definition of conspiracy and argued that the panchnama and the contents of panchnama disclose agreement and meeting of mind with other co-accused. He has also contended that custodial interrogation is very necessary and therefore, prayed that the order dated 15th January 2011 passed by the learned 2nd Additional Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application No.26 of 2011 is required to be cancelled. (6) Heard Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent No.1- State. He has contended that this is a case of criminal conspiracy and panchnama dated 15th April 2008 is the root of the offence. He has also read the contents of the panchnama and argued that in light of the provision of Section 10 of the Evidence Act, contents of the panchnama reveals that it was dictated by the present respondent No.2 and it was also signed by him, and thus, specific ingredient of Section 10 of the Evidence Act, i.e. said, written or done, is established. Mr.Jani has also argued that in the present case, prima facie, it is established that the present respondent No.2 is the conspirator. Therefore, for proper investigation, custodial interrogation is necessary and therefore, the order dated 15th January 2011 passed by the learned trial Judge is required to be set aside. Heard Mr.Parthiv Shah, learned counsel for the respondent No.2. He has argued that maker of the panchnama dated 15th April 2008 is Shri Patel Harikrushna N., witness No.1, who has expired whereas the respondent No.2 is only a signatory of the said panchnama as witness No.2. He has also contended that the witness No.3 Shri Vasudev Mafatlal Patel is released on anticipatory bail and said order was never challenged by the State. He has also been granted regular bail. Mr. Shah has also read the affidavit-in-reply and contended that the conduct of the complainant is also required to be considered. The complainant has made demand of Rs. 1 crore. He has also read the order dated 19th February 2009 and contended that just to extort the money from the present respondent No.2 as well as other co-accused, present application is filed. He has also contended that other co-accused have already been released either on anticipatory or regular bail. He has also contended that the applicant has also filed petition being Special Civil Application No.12186 of 2008 against the order passed by the Mamlatdar in tenancy case, which was ultimately withdrawn and thus, the order passed by the Mamlatdar stood confirmed. He has also contended that the application filed in the Supreme Court of India against one Ketanbhai Babubhai Patel, who has forcibly prepared false panchnama, but that application was rejected. Mr.Shah has also contended that the main accused-Talati is also released on bail, which order was also not challenged by the State. Mr.Shah has also relied upon several judgments. He, therefore, contended that looking to the overall facts and circumstances of the case, present application deserves to be dismissed. (7) I have perused the papers produced before me. I have also considered the submissions advanced by the learned counsel for the parties. I have perused the judgment in case of Mohmed Salim Abdul Rasid Shaikh v. State of Gujarat reported in 2001(2) GLR 1580 . The Supreme Court of India in the said judgment has observed that grant of anticipatory bail stands on different footing than group of regular bail. I have perused the judgment in case of Mohmed Salim Abdul Rasid Shaikh v. State of Gujarat reported in 2001(2) GLR 1580 . The Supreme Court of India in the said judgment has observed that grant of anticipatory bail stands on different footing than group of regular bail. It is also observed by the Supreme Court that discretion in favour of accused must be exercised sparingly and in exceptional circumstances. I have also perused the judgment in case of Siddharam Satlingappa Mhetre v. State of Maharashtra and others reported in (2011) 1 Supreme Court Cases 694 : ( AIR 2011 SC 312 ) and also perused judgment in case of State Rep. by the CBI v. Anil Sharma reported in (1997) 7 Supreme Court Cases 187 : ( AIR 1997 SC 3806 : 1997 Cri LJ 4414). In the said judgment, Supreme Court has observed that custodial interrogation is very important for the Investigating Agency. In the present case, the applicant has tried to establish that custodial interrogation is important whereas Mr.Shah, learned counsel for the respondent No.2 has contended that other co-accused have already been released on bail. (8) It appears from the perusal of the papers that the panchnama dated 15th April 2008 was baseless. There is no reason to prepare the said panchnama. Just to create some dispute, the said panchnama was prepared at the instance of the accused co-conspirators. IT appears that the respondent No.2 had signed the said panchnama as witness. IT is alleged by the applicant that all the accused had conspired for a common intention and agreement regarding the main goal of conspiracy and for this issue, the definition of "Criminal Conspiracy" is required to be looked at, which is defined under the provision of Section 120-A of the Indian Penal Code. The same is as under:- " 120A. - When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof." in the aforesaid definition, the meaning of criminal conspiracy is made clear. Thus if the said definition is taken into account, then "agreement" can be said to be a relevant or main ingredient in the said offence. The basic formula of the aforesaid offence is "Actum Contra Actum" or "Promise against Promise", meaning thereby, there has to be an agreement between two or more persons for committing any illegal act or committing a legal act by illegal means. Agreement itself can be said to be an act and the base of mutual agreement therein is the commitment of each conspirator, which is a promise against promise and the basic principle terming the agreement itself as an act, as contemplated under the law in the said provision. From the above definition of the criminal conspiracy, "Conspiracy consists of the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. IT is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the court." Considering the said point, various High Courts as well as Supreme Court have numerous times observed in their judgment regarding the criminal conspiracy that "agreement between two or more persons for committing an illegal act is sufficient and thereafter, it becomes immaterial as to whether the offence has been committed or not. The agreement arrived at for violating the law for criminal conspiracy, is an essential ingredient to hatch the criminal conspiracy, is something special than abetment, and both the points are different, and it has been necessary to consider the impact upon the facts pursuant to verification of evidence." IT is true that criminal conspiracy can be proved on the basis of circumstantial evidence and it can also be inferred from the attitude and conduct of the conspirators that the agreement had been arrived at. Evidence against one conspirator for committing an illegal act, can also be taken as such against other accused. IT is also true that all the circumstances before and after the committal of offence and at the time of offence, are required to be taken into consideration for adjudicating as to whether there was any criminal conspiracy or not. The Supreme Court has ruled that "The principal is that the agreement should be between the conspirators for committing an illegal act, and it is not necessary that the act may have been done. The Supreme Court has ruled that "The principal is that the agreement should be between the conspirators for committing an illegal act, and it is not necessary that the act may have been done. The agreement may not be in public and the direct evidence may also not be available, and the circumstantial evidence can be relied upon and the conspiracy is a continuing process." I have also perused Section 10 of the Evidence Act, which reads as under : "10. Things said or done by conspirator in reference to common design. - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it." From the perusal of the panchnama dated 15th April 2008, ingredient of Section 10 of the Evidence Act is applicable straightway. (9) I have also perused the order passed by the learned trial Judge. It appears that the learned trial Judge has passed the order without application of mind. At the time of granting anticipatory bail, the learned trial Judge must have to consider the seriousness of the offence. Looking to the seriousness of the offence and more particularly looking to the conduct of the respondent No.2-accused, it is the duty of the learned trial Judge to consider the fact as to whether there are possibilities of tampering with the evidence by the respondent No.2 or not? The learned trial Judge has failed to observe the said important aspect of the matter while enlarging the respondent No.2-accused on bail. The learned trial Judge has never bothered to consider and observe that whether in the present case custodial interrogation is required or not. The learned trial Judge has failed to observe the said important aspect of the matter while enlarging the respondent No.2-accused on bail. The learned trial Judge has never bothered to consider and observe that whether in the present case custodial interrogation is required or not. It is true that in case of Kartar Singh v. State of Punjab reported in 1994 SCC (Cr) 899 : (1994 Cri LJ 3139, Hon'ble Supreme Court has observed as under: "Custodial interrogation exposes the suspect to the risk of abuse of his person or dignity as well as distortion or manipulation of his self-incrimination in the crime. No one should be subjected to physical violence of the person as well as to torture. Infringement thereof undermines the peoples' faith in the efficacy of criminal justice system. Interrogation in police lock-up are often done under conditions of pressure and tension and the suspect could be exposed to great strain even if he is innocent, while the culprit in custody to hide or suppress may be doubly susceptible to confusion and manipulation. A delicate balance has, therefore, to be maintained to protect the innocent from conviction and the need of the society to see the offender punished. Equally, everyone has right against self-incrimination and a right to be silent under Article 20(3) of the Constitution which implies his freedom from Police or anybody else. But when the Police interrogates a suspect, they abuse their authority having unbridled opportunity to exploit his moral position and authority inducing the captive to confess against his better judgment. Silence on the part of the frightened captive seems to his ears to call for vengeance and induces a belief that confession holds out a chance to avoid torture or to get bail or a promise of lesser punishment. The resourceful investigator adopts all successful tactics to elicit confession." But as per the guidelines given by the Hon'ble Supreme Court in case of D.K. Basu v. State of West Bengal and others reported in (1997) 6 Supreme Court Cases 642 : ( AIR 1997 SC 3017 : 1997 Cri LJ 3525), there arises no question of any harassment or ill- treatment, which may be given by the Police. In this case, as per the provision of Section 10 of the Evidence Act, panchnama dated 15th April 2008 is covered within the meaning of Section 10 of the Evidence Act. In this case, as per the provision of Section 10 of the Evidence Act, panchnama dated 15th April 2008 is covered within the meaning of Section 10 of the Evidence Act. In case of Kishan Chand Mangal v. State of Rajasthan reported in AIR 1982 SC 1511 : (1983 Cri LJ 1), the Supreme Court has observed that "A person with a strong will would not be upset on seeing the Police or on interrogated by the Police and may remain cool." In my opinion, to establish the role of the conspirator, who is the main offender in the said act, and at whose instance the panchnama was prepared, and the goal behind preparing the panchnama and understanding the conspirator with other co-conspirators is also required to be investigated by the Investigating Agency. (10) I am of the opinion that looking to the role of the present respondent No.2, custodial interrogation of the respondent No.2 is necessary and when the learned trial Judge has neither considered the evidence nor has given any reasons and prima facie, the base of the offence of criminal conspiracy is also not considered. Hence, the order dated 15th January 2011 passed by the learned 2nd Additional Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application No. 26 of 2011 granting anticipatory bail to the respondent No.2 is required to be cancelled and is hereby cancelled. The respondent No.2 is directed to surrender himself before the Police Authority within a period of 30 days from the date of this order and it would be open for the respondent No.2 to approach the higher forum during this period. Present application stands disposed of accordingly. Rule is made absolute. Order accordingly.