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2022 DIGILAW 1325 (GUJ)

Rashmiben Ketanbhai Pandya v. State of Gujarat

2022-10-11

ASHOKKUMAR C.JOSHI

body2022
JUDGMENT : 1. The Criminal Misc. Application No. 12010 of 2019 is filed under Sections 439(2) of the Criminal Procedure Code, 1973 (CrPC) seeking cancellation of bail granted to the respondent No. 2 therein by an order dated 01.05.2019 passed in Criminal Misc. Application No. 1146 of 2019 by the learned Judge, City Civil and Sessions Court, Court No. 18, Ahmedabad, whereby, the learned City Civil Judge was pleased to dismiss the said application seeking cancellation of anticipatory bail granted to the respondent No. 2 – original accused by way of an order dated 01.09.2017 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Court No. 14, Ahmedabad in Criminal Misc. Application No. 5186 of 2017, for the alleged offence punishable under Sections 465, 467, 468, 471, and 114 of the Indian Penal Code, 1860 (IPC) for which, FIR C.R. No. I-110 of 2017 came to be registered before the Maninagar Police Station, Ahmedabad. 1.1 Whereas, Criminal Misc. Application No. 1 of 2022 is filed by the applicant – original complainant for certain directions. 2. Heard, Ms. Rashmi Pandya, appearing in person and learned advocate Mr. Tarak Damani for the respondent No. 2 – original accused as well as the learned Additional Public Prosecutor for the respondent No. 1 – State. 2.1 The learned advocate for the applicant – original complainant vehemently submitted that despite the respondent No. 2 having been arraigned in a serious offence, the learned City Civil Judge has granted anticipatory bail to him, despite there being prima facie case against the accused person. She submitted that at the time of considering the anticipatory bail application by the learned Court below, Sections 406 and 420 IPC were not there and the same came to be added later. Further, she submitted that since the coordinate Bench was not inclined to quash and set aside the FIR in question, the respondent No. 2 withdrew the quashing petition being Criminal Misc. Application No. 21451 of 2017 on 20.07.2021. The learned advocate for the applicant further vehemently submitted that according to the FSL Report, the handwriting of the applicant – complainant did not match and accordingly, the beneficiaries are required to be taken on remand so that the original culprits may be identified. Application No. 21451 of 2017 on 20.07.2021. The learned advocate for the applicant further vehemently submitted that according to the FSL Report, the handwriting of the applicant – complainant did not match and accordingly, the beneficiaries are required to be taken on remand so that the original culprits may be identified. Further, the accused persons, on many occasions, remained absent and thereby, did not attend the Court proceedings before the learned trial Court, which amounts to breach of one of the bail conditions. The applicant – party-in-person submitted that a total of 24, month-wise repeated offences, by way of two annual rent agreements, were committed by the respondent. She submitted that monthly rent was collected for about 36 months and deposited in the person bank accounts. 2.2 Thus, making above submissions, it is urged that these applications may be allowed and cancel the anticipatory bail granted to the respondent No. 2 – original accused as well as to pass the appropriate directions as prayed for. 3. Per contra, learned advocate Mr. Tarak Damani for the respondent No. 2 – original accused while heavily resisting the applications, submitted that these applications are nothing but a revengeful act on the part of the applicant. He submitted that the applicant had no cordial relations with her nearest relatives and family and is in a habit of making false accusations against anyone and everyone. He submitted that from the Memorandum of Understanding entered into between the applicant and the respondent No. 2, it clearly transpires that the dispute is civil in nature, however, it is given a criminal colour. It is submitted that the FIR filed by the applicant herein had completely false and frivolous allegations levelled against the wife of the respondent No. 2. The allegations made by the applicant included mainly of forgery whereby it was alleged that the respondent No. 2, in connivance of his wife, had forged the signatures of the applicant and in the said manner they had withdrawn certain sum from the bank account of the father of the applicant and wife of respondent No. 2. Similarly, a number of false, fabricated and fake allegations were made by the applicant herein against the respondent No. 2. Similarly, a number of false, fabricated and fake allegations were made by the applicant herein against the respondent No. 2. The allegations of siphoning off the funds does not hold good as a number of withdrawals that the applicant is alleging were made before the death of the father and thereby, the respondent No. 2 cannot be blamed for siphoning off the funds as the same were under the instructions of the father of the and under his signature. Further, the wife of the respondent No. 2 herself was the joint account holder and on that count also, such allegations are not tenable. 3.1 The learned advocate for the respondent No. 2 submitted that even otherwise, the investigation is over and the Charge-sheet is filed in the case and hence, there is no chance / possibility of tampering with the evidence and that, there is no question of remand of respondent No. 2. 3.2 The learned advocate for the respondent No. 2 submitted that the dispute pertains to property and is completely of civil in nature and between the two sisters and accordingly, the impugned order having been rightly passed, no interference is required at the hands of this Court and accordingly, it is urged to dismiss these applications. 3.3 In support, the learned advocate for the respondent No. 2 has relied upon a decision of the Apex Court in Myakala Dharmarajam v. State of Telengana, 2020 (0) AIJEL-SC 65583. 4. The Court has also heard the learned Additional Public Prosecutor for the respondent – State. 5. Regard being had to the submissions made and considering the material available on record, more particularly, the order dated 23.09.2022 passed by the coordinate Bench in Criminal Misc. Application No. 13488 of 2018 with Criminal Misc. Application (Direction) No. 1 of 2019 with Criminal Misc. Application (Direction) No. 1 of 2022 filed by the very applicant against the co-accused, this virtually appears to be the second round of litigation before this Court, inasmuch as, a bare perusal of the first paragraph of the said order (23.09.2022) reveals that the Criminal Misc. Application (Direction) No. 1 of 2019 with Criminal Misc. Application (Direction) No. 1 of 2022 filed by the very applicant against the co-accused, this virtually appears to be the second round of litigation before this Court, inasmuch as, a bare perusal of the first paragraph of the said order (23.09.2022) reveals that the Criminal Misc. Application No. 13488 of 2018 was essentially filed for cancellation of bail granted by the Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad by the order dated 01.09.2017 to the original accused No. 1 in connection with offence being I-CR No.110 of 2017 registered with Maninagar Police Station, Ahmedabad for offences under Sections 465, 467, 468, 471 and 114 of the IPC. 5.1 It is pertinent to note that, thereafter, a Criminal Misc. Application No. 1146 of 2019 was filed by the applicant before the learned City Sessions Court, Ahmedabad with the same prayer of cancellation of bail granted to the respondent No. 2 vide order dated 01.09.2017, essentially, on the ground of addition of Sections 406 and 420 of the IPC and that, by an order dated 12.10.2017 passed by the coordinate Bench in Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No. 21451 of 2017, interim relief granted to the respondent No. 2 came to be vacated. The said application (Criminal Misc. Application No. 1146 of 2019) came to be rejected vide order dated 01.05.2019, which is impugned in this application. The applicant has reiterated the same grounds in this application together with other ground that as per the expert opinion i.e. FSL Report qua signature, it opined that the signature not matched with that of the complainant. 5.2 In the backdrop as aforesaid, if the observations made in the order dated 23.09.2022 passed by the coordinate Bench in Criminal Misc. Application No. 13488 of 2018 with connected matters, are referred to, they are as under : “4. Having considered rival submissions of learned Advocates for the parties and having perused documents on record, it appears that undoubtedly, the offence is a result of differences between the two sisters, the applicant and respondent No.2 with regard to property belonging to their father. The record indicates that more than one attempts have been made so as to bring about an amicable settlement between the parties and despite honest efforts made by all concerned, differences are not resolved. 5. The record indicates that more than one attempts have been made so as to bring about an amicable settlement between the parties and despite honest efforts made by all concerned, differences are not resolved. 5. With regard to submission of party-in-person regarding continuing and subsequent offence, the Court is unable to accept the contention that 25 separate offences have been committed by the respondent after being enlarged on bail as nothing is placed on record with regard to any FIR being registered or any private complaint been ordered by the Court of competent jurisdiction . It appears that such submission by the applicant is on misconception of fact that the rent which is received towards property has been siphoned by the respondent and that would constitute an offence. Such a contention is not in accordance with the provisions of the Indian Penal Code, more particularly when dispute of civil nature is reportedly pending before the Court of competent jurisdiction. 6. With regard to attendance of the respondent, the Court would accept statement made at Bar that except for the dates on which respondent No.2 has been exempted, she has continuously remained present before the concerned trial Court. 7. In over all view of the matter, particularly the respondent being a lady accused and that too sister of the present applicant, the Court is not inclined to interfere with the discretion exercised by the Sessions Court in favour of respondent No.2. The Court also finds that the Sessions Court has imposed necessary conditions so as to protect interest of prosecution and trial. 8. Lastly, party-in-person drawn attention of the Court to an application made separately being Criminal Misc. Application No.1 of 2022, wherein it is prayed as under:- “7.1 a reasoned order awarded, specifically mentioning FSL report findings. 7.2 the respondents, who are repeat offenders with a long history of crimes be arrested and sent for remand to ascertain the source of five forged signatures. 7.3 the bail wrongfully obtained be canceled on merit and evidence. 7.4 the final reasoned order may also direct the trial court No.15 to undertake day to day hearing and complete the process within 120 days.” 8.1 The aforesaid prayer is for passing necessary direction with regard to findings of the FSL report as well as for expeditious trial of the Court. 7.4 the final reasoned order may also direct the trial court No.15 to undertake day to day hearing and complete the process within 120 days.” 8.1 The aforesaid prayer is for passing necessary direction with regard to findings of the FSL report as well as for expeditious trial of the Court. With regard to this prayer, the Court is of the view that the same is in the domain of investigation which has been undertaken by the investigating agency and if any grievance is raised then it is open for the applicant to raise it before the appropriate forum. 8.2 With regard to expeditious trial within a period of 120 days, the Court observes that it is open for the applicant to make such application for expeditious trial in accordance with the provisions of the Criminal Procedure Code and as and when such application is made, concerned trial Court may pass necessary orders in accordance with law. 9. With the aforesaid, the application stands disposed of. Rule is discharged. 10. In view of the order passed in the main application, Criminal Misc. Application No.1 of 2019 and Criminal Misc. Application No.1 of 2022 do not survive. Disposed of accordingly.” 5.3 It is also pertinent to note here that, vide application being Criminal Misc. Application No. 1 of 2022 (in Criminal Misc. Application No. 13488 of 2018), the applicant had prayed for the same reliefs as referred to herein in Criminal Misc. Application No. 1 of 2022 in Criminal Misc. Application No. 12010 of 2019 i.e. the present one, which are already dealt with by the coordinate Bench in the aforesaid order. 5.4 Thus, save and except the ground of addition of Sections 406 and 420 IPC, nothing substantial is canvassed to justify the case by the applicant. Further, the coordinate Bench has already dealt with all other aspects of the matter. 5.4 Thus, save and except the ground of addition of Sections 406 and 420 IPC, nothing substantial is canvassed to justify the case by the applicant. Further, the coordinate Bench has already dealt with all other aspects of the matter. So far as the offence punishable under Sections 406 and 420 IPC is concerned, the maximum punishment prescribed for is seven years and as per the decision of the Apex Court in Arnesh Kumar v. State of Bihar, MANU/SC/0559/2014, directions are issued to ensure that Police Officer do not arrest the accused unnecessarily and Magistrate do not authorize detention of citizen, casually and mechanically, more particularly, in the cases where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine. 5.5 Further, in a very recent decision in Vivekanand Mishra v. State of U.P. and Ors., MANU/SC/1133/2022, the Apex Court has observed as under : “12. The power to grant bail Under Section 438 of the Code of Criminal Procedure may be discretionary. However, discretion to grant bail has to be exercised judiciously, as held by this Court in Ram Govind Upadhyay v. Sudarshan Singh and Ors. reported in MANU/SC/0203/2002 : (2002) 3 SCC 598 . speaking for the Court, Umesh Chandra Banerjee, J. said: 3. Grant of bail though being a discretionary order--but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the Accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail-- more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter. 4. The nature of the offence is one of the basic considerations for the grant of bail-- more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter. 4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being: (a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the Accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) 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. 13. In Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr. reported in MANU/SC/0916/2010 : (2010) 14 SCC 496 , D.K. Jain, J., speaking for a two-Judge Bench of this Court laid down the principles for examining the correctness of orders granting bail to an Accused. This Court held: 9. ...It is trite that this Court does not, normally, interfere with an order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] passed by the High Court granting or rejecting bail to the Accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe 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, behaviour, 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. *** 10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal. 14. In Mahipal v. Rajesh Kumar and Anr. reported in MANU/SC/1677/2019 : (2020) 2 SCC 118 , this Court held: 14. The provision for an Accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the Accused had committed the offence, the nature and gravity of the offence and the likelihood of the Accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the Accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding. 15. In Sanjay Chandra v. Central Bureau of Investigation reported in MANU/SC/1375/2011 : (2012) 1 SCC 40 , this Court held: 24. In the instant case, we have already noticed that the "pointing finger of accusation" against the Appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the Appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice". 25. The provisions of Code of Criminal Procedure confer discretionary jurisdiction on criminal courts to grant bail to the Accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. .… 16. In Siddharam Satlingappa Mhetra v. State of Maharashtra and Ors. .… 16. In Siddharam Satlingappa Mhetra v. State of Maharashtra and Ors. reported in MANU/SC/1021/2010 : (2011) 1 SCC 694 ) rendered in the context of the discretion to grant Anticipatory Bail Under Section 438, this Court advocated the need to balance individual personal liberty with societal interest. This Court held: 84. Just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important. 17. There is no straight jacket formula for grant or refusal of bail. Seriousness of the charge is undoubtedly one of the relevant considerations while considering bail applications. All the relevant factors have to be weighed by the Court considering an application for bail, including the gravity of the offence, the evidence and material which prima facie show the involvement of applicant for bail in the offence alleged, the extent of involvement of the applicant for bail, in the offence alleged, possibility of the applicant Accused absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tampered with, and danger to the safety of the victim (if alive), the complainant, their relatives, friends or other witnesses. 18. xxx 19. xxx 20. In Dolat Ram (supra), this Court held: 4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the Accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the Accused absconding is yet another reason justifying the cancellation of bail. The satisfaction of the court, on the basis of material placed on the record of the possibility of the Accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the Accused to retain his freedom by enjoying the concession of bail during the trial.” 5.6 Yet in another recent decision in Manisha v. State of Rajasthan and Ors., MANU/SC/0498/2022, the Apex Court has observed as under : “11. Once bail has been granted, the Appellate Court is usually slow to interfere with the same as it pertains to the liberty of an individual. A Constitution Bench of this Court in Bihar Legal Support Society v. Chief Justice of India, MANU/SC/0163/1986 : (1986) 4 SCC 767 observed as follows: 3. ... It is for this reason that the Apex Court has evolved, as a matter of self-discipline, certain norms to guide it in the exercise of its discretion in cases where special leave petition are filed against orders granting or refusing bail or anticipatory bail....We reiterate this policy principle laid down by the bench of this Court and hold that this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter. (emphasis supplied) 12. The above principle has been consistently followed by this Court. In Prasanta Kumar Sarkar v. Ashis Chatterjee, MANU/SC/0916/2010 : (2010) 14 SCC 496 this Court held as under: 9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the Accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe 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, behaviour, 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. xxx xxx xxx 10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal.....” 6. Adverting the case on hand keeping in mind the aforesaid settled legal position, the respondent No. 2 – original accused is arraigned as accused for the offence punishable under Sections 406, 420, 120-B, IPC for which, they have been released on anticipatory bail by the learned Court below. Adverting the case on hand keeping in mind the aforesaid settled legal position, the respondent No. 2 – original accused is arraigned as accused for the offence punishable under Sections 406, 420, 120-B, IPC for which, they have been released on anticipatory bail by the learned Court below. Considering the overall facts and circumstances of the case vis-a-vis the settled legal position as enumerated herein above, following aspects have been weighed with by the Court: (i) the accused are arraigned for the offence punishable under Sections 406, 420, 465, 467, 468, 471, and 114 IPC; (ii) it is not the case that the respondent No. 2 – accused has breached any condition of bail granted to her; (iii) it is also not the case of the applicant – original complainant that the accused has tampered and/or hampered or tried to do so, with the evidence; (iv) it is also not a case that the respondent No. 2 – accused may flee from justice; (v) the respondent No. 2 – accused is happens to be the brother-in-law of the original complainant; (vi) there appears nothing to show that the respondent No. 2 – accused has misused his liberty; (vii) the dispute prima facie appears to be of civil in nature; (viii) the case projected for cancellation of bail by the applicant – original complainant appears to have been rested only on the presumption; (x) so far as addition of sections and the FSL report etc. are concerned, the respondent - accused is yet to go through the test of trial; (xi) it is trite law that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to; (xii) last but not the least, the order passed by the coordinate Bench dated 23.09.2022 passed in Criminal Misc. Application No. 13488 of 2018 and connected matters. 7. In view of the above, the Court finds no reason to interfere with the order granting anticipatory bail to the respondent – accused. 8. For the forgoing observations and discussion, the present applications fail and are dismissed. 8.1 It goes without saying that the observations made herein above being prima faice, shall have no bearing on trial and the trial shall run independently, without any influence. 8. For the forgoing observations and discussion, the present applications fail and are dismissed. 8.1 It goes without saying that the observations made herein above being prima faice, shall have no bearing on trial and the trial shall run independently, without any influence. 8.2 At this juncture, the Court is constrained to observe that the Court would have dismissed this application with cost, more particularly, in view of the order dated 23.09.2022 passed by the coordinate Bench, as referred to herein above, however, it restrains itself from passing such an order, for the reason that the applicant is a lady and appearing in-person. 8.3 In view of main application is dismissed, Criminal Misc. Application (Direction) No. 1 of 2022 therein does not survive, and stands disposed accordingly.