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2016 DIGILAW 836 (GUJ)

Ambadan Himatdan Payak v. State of Gujarat

2016-04-18

R.M.CHHAYA

body2016
JUDGMENT : R.M. Chhaya, J. 1. Rule. Mr. L.B. Dabhi, learned Additional Public Prosecutor waives service of Rule on behalf of the respondent - State. 2. By way of this petition under Article 227 of the Constitution of India read with Sections 167(2) and 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has challenged the order dated 24.8.2012 passed by the learned Chief Judicial Magistrate granting remand of the petitioner for a period of 3 days in connection with the FIR bearing CR No. I-100/2012 registered with Bhuj Taluka Police Station for the offence punishable under Sections 465, 467, 468, 471 and 120B of the IPC as well as the order dated 18.9.2012 passed by the learned 7th Additional Sessions Judge, Bhuj-Kutch in Criminal Misc. Application No. 58 of 2012. 3. At the outset, it deserves to be noted that by an order dated 18.9.2012 passed by the learned 7th Additional Sessions Judge, Bhuj-Kutch in Criminal Revision Application No. 58 of 2012, the order of remand was stayed till 17.10.2012. It appears that this Court (Coram: R.H. Shukla, J.) was pleased to issue notice on 12.10.2012 making it returnable on 15.10.2012 and thereafter, the following order was passed by this Court (Coram: K.M. Thaker, J.):-- "Mr. Shah, learned counsel for petitioner has submitted that, under order dated 17th October 2012, the Court continued/extended the suspension of the order by learned Sessions Court. He submitted that, subsequently, vide order dated 22nd October 2012 also, the said suspension was extended until 1st November 2012. However, thereafter, though the proceedings came to be adjourned from time to time due to paucity of time, inadvertently, similar order has not been passed though both sides have understood that suspension has been continued/extended. He, therefore, requested that the said order of suspension may be continued/extended until next date. Learned A.P.P. has no objection. Therefore, while adjourning the hearing of this petition to 14th December 2012, the effect of the order passed on 22nd October 2012 is directed, provided any change in the meanwhile has not taken place, to be continued until 14th December 2012 subject to usual conditions." 4. In light of the aforesaid therefore, with the consent of the parties, RULE is made returnable forthwith. 5. In light of the aforesaid therefore, with the consent of the parties, RULE is made returnable forthwith. 5. Following facts emerge from the record of the petition:-- 5.1 That, Narsinhbhai Gokulbhai Bhanderi, the then Mamlatdar of Bhuj has filed the present FIR for the alleged offence as enumerated hereinabove. The case against the petitioner which unfold from the record of the petition is that the present petitioner along with the other persons namely Vidhyaben and Chandrashekhar Velji have made certain changes in the agreement (Ekararnama) in relation to alleged survey No. 870/I which according to the first informant belongs to the Government. It is the case of the petitioner that he is not named in FIR and there is no sale deed in the name of the petitioner. That, the petitioner is husband of accused No. 1 - Vidhyaben and he was apprehending his arrest. He preferred anticipatory bail before the learned Sessions Court, which came to be rejected by order dated 23.7.2012. It is a matter of record this Court (Coram: Ms. Sonia Gokani, J.) by an order dated 8.8.2012 passed in Criminal Misc. Application No. 11200 of 2012 filed by the present petitioner was pleased to enlarge the applicant on anticipatory bail. After grant of anticipatory bail, the investigating agency filed an application for remand of the present petitioner before the learned Magistrate on 21.8.2012 on the following 3 grounds:-- (i) To recover original document No. 916. (ii) To recover the original document between Chandrashekhar and Vidhyaben of the year 2007 under No. 1034; and (iii) To recover original copy of Ekararnama in which some changes are alleged to have been made. 5.2 The petitioner filed his objection and the learned Magistrate by the impugned order was pleased to allow the said application and grant remand under Section 167(2) for a period of 3 days. The petitioner, being aggrieved by the same, preferred the Revision as provided under Section 397 of the Code and the learned Sessions Judge by the impugned order mainly rejected the Revision Application on the ground that the order of remand being an interlocutory order, Revision is not maintainable though the other aspect on merit was discussed and argued before the learned Sessions Judge. Being aggrieved by both these impugned orders, the present petition is filed. 6. Mr. Being aggrieved by both these impugned orders, the present petition is filed. 6. Mr. Mehul Sharad Shah, learned advocate for the petitioner has taken this Court through the order dated 24.8.2012 passed by the learned Chief Judicial Magistrate, Bhuj as well as the order dated 18.9.2012 passed by the learned Sessions Judge. It is contended that in fact the suit being Special Civil Suit No. 65 of 2011 is filed by Vidhyaben, wife of the present petitioner claiming rights over the land in question in survey No. 870. It is contended that in the said suit, Vidhyaben has produced a copy of Ekararnama which is the sole basis of the present complaint against the accused, wherein in the FIR, the petitioner is not even named. It is contended that the learned Chief Judicial Magistrate, without appreciating the written objection and the provisions of law, was pleased to grant remand for a period of 3 days. It is further contended that there is no nexus as far as the petitioner is concerned, except the fact that Vidhyaben is wife of the present petitioner and all the 3 documents which are mentioned in the application for remand is not in possession of the petitioner. Even original of it was not in possession of Vidhyaben and the same can be recovered from the another accused-Chandrashekhar. It is contended that wife of the petitioner in fact purchased the property in question by a sale deed which came to be registered on 3.2.2007 from one Ramji Dhanji Patel for a sale consideration of Rs. 4,50,000/-. Inviting attention of this Court to the specific averment made in Paragraph 5 of the application, it is contended that at the time of promulgation in the year 1995, through oversight and/or mistake, name of the Government appears. Otherwise, the title of the land is claimed by Vidhyaben. It is contended that the document which is made basis of the present complaint was filed in the suit filed by Vidhyaben and the Court has not raised any complaint. It is further submitted that no right is created by just mentioning "Bhuj sim nu" as it can be seen from the whole document that it is Ekararnama on the basis of the earlier transfers made by some Vasantrao Gaurishankar and his heirs. It is further submitted that no right is created by just mentioning "Bhuj sim nu" as it can be seen from the whole document that it is Ekararnama on the basis of the earlier transfers made by some Vasantrao Gaurishankar and his heirs. Relying upon the ratio laid down by this Court in the case of Jairajsinh Temubha Jadeja v. State of Gujarat, reported in 2002 (1) GLR 215 , it was contended that the remand cannot be granted to obtain confessional statement or discover material used by the accused. It is therefore submitted that the impugned orders deserve to be quashed and set aside. It is submitted that as far as the order passed by the learned Sessions Judge is concerned, the Revision is dismissed only on the ground of jurisdiction. However, this Court may examine the same as well as the order-in-origin passed by the learned Chief Judicial Magistrate granting remand independently under Article 227 of the Constitution of India. 7. Mr. L.B. Dabhi, learned Additional Public Prosecutor has supported both the impugned orders. 8. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties. 9. Before reverting to the submissions made by the learned advocates appearing for the respective parties, it deserves to be noted that the learned advocate for the petitioner has also produced a photocopy of Ekararnama which is taken on record. As noted by this Court while enlarging the petitioner on bail, it is observed that essentially, the dispute is a civil dispute. On perusal of the order impugned passed by the learned Sessions Judge, it appears that the Revision is dismissed only on the ground of jurisdiction. Similarly, on independently examining the order-in-origin passed by the learned Chief Judicial Magistrate, Bhuj, one of the reason which is given by the learned Magistrate is that for investigation, personal attendance of the petitioner is necessary, that too, in order to get the documents which are enumerated in the application. At this juncture, it would be appropriate to refer to the judgment in the case of Jairajsinh Temubha Jadeja (supra), wherein it has been observed thus:-- "14. At this juncture, it would be appropriate to refer to the judgment in the case of Jairajsinh Temubha Jadeja (supra), wherein it has been observed thus:-- "14. While, going through the above mentioned 11 grounds of the remand, it clearly appears that none of the grounds is sufficient to come to the conclusion that the police custody is necessary for the interrogation even if there be a prima facie material with the Investigating Agency. In the facts and circumstances of the case, irrespective of the involvement of the petitioners in the crime and the material collected by the Police Authorities, none of the grounds is sustainable to order remand in police custody. Remand cannot be granted to obtain confessional statement, the remand cannot be granted to discover materials used by the other accused or for the arrest of the other accused. In this regard, the observation of the Apex Court in the matter of SMT. NANDINI SATPATHY v. P.L. DANI, reported in AIR 1978 SC 1025 expresses in so many words that when remand contravenes Article 20(3) of the Constitution of India, remand cannot be granted. In Paragraph 32 of the said decision, the Apex Court observed as under: "32. We will now answer the questions suggested at the beginning and advert to the decisions of our Court which set the tone and temper of the 'silence' clause and bind us willy nilly. We have earlier explained why we regard S. 161(2) as a sort of parliamentary commentary on Art. 20(3). So, the first point to decide is whether the police have power under Ss. 160 and 161 of the Criminal Procedure Code to question a person who, then was or, in the future may incarnate as, an accused person. The Privy Council and this Court have held that the scope of S. 161 does include actual accused and suspects and we deferentially agree without repeating the detailed reasons urged before us by counsel." Thereafter in paras 42 and 53 the Apex Court observed as under: "42. Let us hypothesize a homicidal episode in which A dies and B is suspected of murder; the scene of the crime being "C". In such a case a bunch of questions may be relevant and yet be innocent. Any one who describes the scene as well - wooded or dark or near a stream may be giving relevant evidence of the landscape. In such a case a bunch of questions may be relevant and yet be innocent. Any one who describes the scene as well - wooded or dark or near a stream may be giving relevant evidence of the landscape. Likewise, the medical evidence of the wounds on the deceased and the police evidence of the spots where blood pools were noticed are relevant but vis-à-vis B may have no incriminatory force. But an answer that B was seen at or near the scene, at or about the time of the occurrence or had blood on his clothes will be incriminatory, is the hazard of inculpatory implication. In this sense, A answers that would, in themselves, support a conviction are confessions but answers which have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory. Relevant replies which furnish a real and clear link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend Art. 20(3) if elicited by pressure from the mouth of the accused. If the statement goes further to spell in terms that B killed A, it amounts to confession. An answer acquires confessional status only if, in terms or substantially, all the facts which constitute the offence are admitted by the offender. If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20(3) strikes at confessions and self-incriminations but leaves untouched other relevant facts." "53. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Art. 20(3) goes back to the stage of police interrogation - not, as contended, commencing in court only. In our judgment the provisions of Art. 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative polixity, overbearing an intimidatory methods and the like - not legal penalty for violation. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative polixity, overbearing an intimidatory methods and the like - not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Art. 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of Art. 20(3)." 10. In the case on hand, the petitioner is not the purchaser even if it is presumed that the property in question is purchased by his wife - Vidhyaben. Vidhyaben has filed a suit. The reason for which the remand of 3 days for the petitioner came to be granted are non-germane and contrary to the provisions of Section 167(2) of the Code. Ekrarnama is not between Vidhyaben and purchaser. This is old document dated 3.10.1970 which was executed between Vasantray Gaurishankar Raval and one Ramji Govind from whom Vidhyaben has purchased the land in question. 11. In light of the aforesaid therefore, the reasons given for remand of 3 days are non-germane to the issue and against the settled principles of law for grant of remand. 12. It is, however, made clear that the observations made in this order is only limited to the issue involved in this petition and the order dated 24.8.2012 passed by the learned Chief Judicial Magistrate. In light of the aforesaid therefore, the order dated 18.9.2012 passed by the learned 7th Additional Sessions Judge, Bhuj-Kutch in Criminal Misc. Application No. 58 of 2012 is not separately dealt with. In view of the aforesaid finding, order dated 24.8.2012 passed by the learned Chief Judicial Magistrate as well as order dated 18.9.2012 passed by the learned 7th Additional Sessions Judge, Bhuj-Kutch in Criminal Misc. Application No. 58 of 2012 deserve to be quashed and set aside and are hereby quashed and set aside. The petition is accordingly allowed. Rule is made absolute.