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2024 DIGILAW 1079 (GUJ)

Ravirajsinh Bharatsinh Dodiya v. State of Gujarat

2024-05-01

J.C.DOSHI

body2024
ORDER : 1. By way of the present petitions under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11192017240045 registered with Detroj Police Station. 2. The complainant was intended to sell his agricultural land being survey No.48 at village Juval Rupavati, Tal: Bavla, Dist: Ahmedabad and thereafter, the complainant came in contact with the petitioner and initially, it was decided to sell the land at Rs.23,51,000/- per vigha and the petitioner accused had given part sale consideration of Rs.2,50,000/-. According to the FIR, the petitioner accused has secured the land by taking signature of the complainant and his wife on the promissory note. Some civil disputes also arises between the complainant and third party. The complainant was insisting for execution of the sale deed, but the petitioner accused denied and therefore, the transaction was discontinued and therefore, the complainant has given back the part sale consideration to the petitioner accused. But, again the petitioner met the complainant and decided to purchase the land of the complainant at the price of Rs.53 lakh per vigha. Rs.11 lakh was paid towards the part of the sale consideration and it was decided the execute the sale deed within few days. According to the FIR, on the date of execution of the sale deed, the petitioner accused has shown cheque of Rs.1.90 crore to the complainant and took him to the trust and took him to Mamlatdar Office, Bavla for execution of the sale deed, but ultimately, that transaction also failed and it was told by the complainant to the petitioner accused that you may get back your Rs.11 lakh. Then under the technical modus operandi, the petitioner started to grab the land of the complainant. The petitioner has firstly deposited Rs.10 lakh in the account of the complainant and then kidnapped the complainant and took him to the Sub Registrar Office and got the sale deed executed of the disputed land. The car in which the complainant was kidnapped was driving by the accused No.2, he has also threatened the complainant. Another accused Yuvrajsinh was accompanying Thar car with another care namely Hyundai. The complainant was given threat and also spoken filth and derogatory language. Hence, present FIR. 3. Heard learned advocate Mr. The car in which the complainant was kidnapped was driving by the accused No.2, he has also threatened the complainant. Another accused Yuvrajsinh was accompanying Thar car with another care namely Hyundai. The complainant was given threat and also spoken filth and derogatory language. Hence, present FIR. 3. Heard learned advocate Mr. Valmik Vyas for the petitioner, learned advocate Mr. Sudhanshu Jha for the complainant and learned APP. 4. Learned advocate for the petitioner would submit that the petitioner has been falsely implicated. He would further submit that the complainant after pocketing huge amount from the purchaser of the land and after executing the sale deed by remaining present in the Sub Registrar Office has filed impugned FIR to extort money. He would further submit that the entire story of kidnapping has been fabricated story to achieve the motive of extorting money from the petitioner accused. He would further submit that the complainant was never kidnapped or abducted, but the complainant on his own went with the accused in his car and it is clear from the CCTV footage. He would further submit that though it is alleged that the petitioner was threatening the complainant and his family members and under the threat, has got the sale deed executed. The said aspect is incorrect on the ground that the complainant himself went to the Sub Registrar Office and executed the sale deed after obtaining sale consideration. He would further submit that the FIR is filed after 19 days of the alleged incident, which itself indicates that the story in the FIR is concocted for the purpose of obtaining money from the petitioner by taking advantage of earlier transaction took place. In addition to above submission, learned advocate for the petitioner would submit that the accused No.2 has played very limited role in the commission of the offence. He would further submit that according to the FIR, the accused No.2 has driven the Thar car in which the complainant as allegedly kidnapped. Therefore, considering that role also, the petitioner would be enlarged on anticipatory bail. He would further submit that the petitioners are permanent residents of Ahmedabad having movable and immovable properties and readily available for investigation as and when he is called. 5. Upon such submission, learned advocate for the petitioner prays to allow this petition and enlarge the petitioner on anticipatory bail. 6. He would further submit that the petitioners are permanent residents of Ahmedabad having movable and immovable properties and readily available for investigation as and when he is called. 5. Upon such submission, learned advocate for the petitioner prays to allow this petition and enlarge the petitioner on anticipatory bail. 6. On the other hand, learned advocate Mr. Sudhanshu Jha for the complainant would submit that taking advantage of earlier transaction, the petitioner was fully knowing that the complainant wanted to sell his land and as such, the petitioner used the title papers of the complainant. He would further submit that the alleged purchaser of the property is not knowing to the complainant nor the complainant is knowing the alleged purchaser and the alleged purchaser is puppet of the petitioner, which could be seen from the investigation papers and therefore, he submits that it is a fake sale consideration executed by the petitioner under the threat and therefore, prima facie, alleged offence is made out against the petitioner and therefore, he requests to dismiss the petition. 7. Learned APP having joined the submissions of learned advocate for the complainant would submit that the investigation papers reveals that the petitioner played very vital role and another accused Mr. Digvijaysinh was his ally. So, both of them have abducted and kidnapped the complainant and got the sale deed executed in Sub Registrar Office in favour of one Mr. Vora, who is not knowing to the complainant. Therefore, looking to this aspect, the custodial interrogation is required and therefore, he requests to dismiss the petition. 8. Having heard learned advocates appearing for the respective parties, at the outset, I may refer to the settled provisions of law for granting or refusing the anticipatory bail in case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat reported in AIR 2015 SC 3090 , the Hon’ble Apex Court delineated the following factors and parameters that needs to be taken into consideration while dealing with the anticipatory bail. State of Gujarat reported in AIR 2015 SC 3090 , the Hon’ble Apex Court delineated the following factors and parameters that needs to be taken into consideration while dealing with the anticipatory bail. “(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) The antecedents of the petitioner including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (c) The possibility of the petitioner to flee from justice; (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the petitioner by arresting him or her; (f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) 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 the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern; (h) 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 free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) 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 in entitled to an order of bail.” 9. If we look at the allegations stated in the FIR, what appears that the complainant was intended to sell his agricultural land being survey No.48 at village Juval Rupavati, Tal: Bavla, Dist: Ahmedabad and thereafter, the complainant came in contact with the petitioner and initially, it was decided to sell the land at Rs.23,51,000/- per vigha and the petitioner accused had given part sale consideration of Rs.2,50,000/-. According to the FIR, the petitioner accused has secured the land by taking signature of the complainant and his wife on the promissory note. Some civil disputes also arises between the complainant and third party. The complainant was insisting for execution of the sale deed, but the petitioner accused denied and therefore, the transaction was discontinued and therefore, the complainant has given back the part sale consideration to the petitioner accused. But, again the petitioner met the complainant and decided to purchase the land of the complainant at the price of Rs.53 lakh per vigha. Rs.11 lakh was paid towards the part of the sale consideration and it was decided the execute the sale deed within few days. According to the FIR, on the date of execution of the sale deed, the petitioner accused has shown cheque of Rs.1.90 crore to the complainant and took him to the trust and took him to Mamlatdar Office, Bavla for execution of the sale deed, but ultimately, that transaction also failed and it was told by the complainant to the petitioner accused that you may get back your Rs.11 lakh. Then under the technical modus operandi, the petitioner started to grab the land of the complainant. The petitioner has firstly deposited Rs.10 lakh in the account of the complainant and then kidnapped the complainant and took him to the Sub Registrar Office and got the sale deed executed of the disputed land. The car in which the complainant was kidnapped was driving by the accused No.2, he has also threatened the complainant. Another accused Yuvrajsinh was accompanying Thar car with another care namely Hyundai. The complainant was given threat and also spoken filth and derogatory language. In background of above allegation made in the FIR, if we go to the investigation carried out by the investigating officer uptil now, what appears that the alleged sale deed is executed in favour of one Mr. The complainant was given threat and also spoken filth and derogatory language. In background of above allegation made in the FIR, if we go to the investigation carried out by the investigating officer uptil now, what appears that the alleged sale deed is executed in favour of one Mr. Vora and his statement is recorded by the investigating officer and he reveals that he has not purchased any disputed property from the complainant, but since he was knowing the petitioner, he has given revenue papers for purchasing the agricultural land. Thus, it is clear that Mr. Vora was alleged to be purchaser of the disputed land and even though, he has stated that he has not purchased any land. In the sale deed, the petitioner has signed it in capacity of witness. Prima facie, it appears that the complainant was abducted and was forced to execute the sale deed under the threat. Thus, the allegations made against the petitioner are sufficient enough to deny extraordinary jurisdiction to grant bail. 10. At the cost of the repetition, the complainant was abducted by the petitioner and other accused and without paying any consideration or meagre amount, which was not accepted by the complainant, the sale deed of the disputed land of the complainant has been got executed by the petitioner. Thus, prima facie case is made out against the petitioner. 11. Keeping in mind the law laid down by the Hon’ble Supreme Court in the case of (i) State Rep. by the CBI V/s Anil Sharma reported in 1997 (7) SCC 187 , (ii) Adri Dharan Das V/s State of W.B. reported in 2005 (4) SCC 303 (iii) P. Chidambaram V/s Directorate of Enforcement reported in AIR 2019 SC 4198 , wherein the Hon’ble Supreme Court has held held as follows: "The legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest. However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. It may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In this view, it cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant/petitioner under Article 21 of the Constitution of India. Consequently, power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the petitioner fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Anticipatory bail is to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy". Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation". 12. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused, but several other purposes. Power u/s 438 of the Code is an extraordinary power and the same has to be exercise sparingly in appropriate and fit case. This privilege should be extended only in exceptional cases. It is a judicial discretion conferred upon the court, and it is to be properly exercised after application of mind as to the nature and gravity of the accusation, possibility of the petitioner fleeing from justice and other factors to decide whether it is a fit case for grant of anticipatory bail. 13. Resultantly, present petitions fail and stand dismissed.