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2024 DIGILAW 1086 (GUJ)

Abdulmajid Abdulsattar Memon v. State Of Gujarat

2024-05-01

NIRZAR S.DESAI

body2024
ORDER : 1. By way of this successive bail application preferred under Section 439 of the Code of Criminal Procedure, 1973, the applicant is seeking regular bail in connection with the FIR being C.R.No. 11209024220197 of 2022 registered with the Jadar Police Station, District: Sabarkantha for the offences punishable 406, 419, 465, 467, 468, 471 and 114 of the Indian Penal Code. 2. As per the FIR registered by Abdul Satar Haji Abdul Rahim, he was having land at Survey No.275 New Survey No.161 Khata No.587 admeasuring 1 - 96 - 41 Hectare - RA - Sq. Mts. situated at Mouje Isarwada, Tal. Idar and as the first informant went to Axis Bank, Himmatnagar for lifting the charge for the said land on 1.1.2022, he found that there were two mutation entries about lifting of the charge over the land. Therefore, upon suspicion, he got the revenue records in the form of 7/12 extracts and Form No.6 and found that on 27.1.2022, the land belonging to the first informant was sold to one Patel Krishnakumar Kodarbhai and mutation entry to that effect was mutated. Upon further inquiry from the Sub-Registrar office, it was found that on the first and last page of the Sale Deed, the photographs which were affixed were not of the first informant and was of some other person. Therefore, the first informant registered the FIR. 3. During the course of investigation, it was revealed that the applicant who happens to be the son of the first informant was the person who was actively involved in the offence in question and everything was designed by him and it was he only who hatched the conspiracy, got the sale deed executed in some other person's name i.e. Patel Krishnakumar Kodarbhai at a sale consideration of Rs.1,07,00,000/- and sold away the land which was belonged to his father - first informant. 4. It is pursuant to the above offence that the present applicant was arrested on 04.05.2023 and since then he is in jail which would indicate that he is in jail since less than one year. 5. Heard learned advocate Mr. Zubin Bharda with learned advocate Mr. Chauhan for the applicant. He could not point out any other circumstances for consideration of the bail application as the present applicant when preferred earlier successive bail application being Criminal Misc. 5. Heard learned advocate Mr. Zubin Bharda with learned advocate Mr. Chauhan for the applicant. He could not point out any other circumstances for consideration of the bail application as the present applicant when preferred earlier successive bail application being Criminal Misc. Application No. 15043 of 2023 which was rejected by a reasoned order dated 06.10.2023 and the present applicant thereafter challenged the aforesaid order before the Hon’ble Supreme Court by preferring Special Leave to Appeal (Criminal) No. 14589 of 2023 which was also dismissed by the Hon’ble Supreme Court vide order dated 22.11.2023 and hence, in view of any subsequent change of circumstances, the only change of circumstances pointed out by learned advocate Mr. Bharda, in view of the fact that the original accused no. 1 has now given an application before the Trial Court for further investigation under section 173 (8) of the Criminal Procedure Code and therefore, the same is likely to prolong the trial and that application has been allowed. That is the only ground canvassed by the present applicant for pointing any change of circumstances. As according to the applicant, the same would prolong the trial and therefore, the applicant is required to be enlarged on bail. 6. Learned APP Ms. Shruti Pathak appearing for the respondent – State vehemently opposed this successive bail application and submitted that not just the role of the present applicant but his antecedent has also been considered by this Court while rejecting his application for regular bail. On earlier occasion by this Court while dismissing the successive bail application vide order dated 06.10.2023 passed in Criminal Misc. Application No. 15043 of 2023, learned APP pointed out that there are as many as 14 antecedents against the present applicant and the present applicant seems to have not left any of the offences mentioned in the Indian Penal Code to be committed. As the offences alleged against the present applicant includes the offences relating to cheating, producing fraudulent documents, black mailing, siphoning off the amounts, creating obscene video clip, offence under the Arms Act, offence of rape, offence relating to dowry etc. Learned APP Ms. As the offences alleged against the present applicant includes the offences relating to cheating, producing fraudulent documents, black mailing, siphoning off the amounts, creating obscene video clip, offence under the Arms Act, offence of rape, offence relating to dowry etc. Learned APP Ms. Pathak submitted that not only that considering the role of the present applicant that he himself has tried to defraud his own father in respect of the land of his own father, which also would indicate that the present applicant has not even spared his family members and therefore, coupled with the fact that the present applicant is in jail since less than one year and the maximum punishment if the applicant is held guilty in the offences alleged against him would be ten years imprisonment. 6.1. Considering the overall facts and circumstance of the case as well as considering the fact that the present applicant can always challenge the order of further investigation, if he is so aggrieved by the aforesaid order. That same cannot be said to be a ground to enlarge him on bail and therefore, the present application preferred by the present applicant cannot be considered to be an application made on the basis of change of circumstances. 6.2. Learned APP Ms. Pathak further submitted that even the Hon’ble Supreme Court has confirmed the order passed by this Court rejecting the bail application of the applicant vide order dated 22.11.2023 passed in Special Leave to Appeal (Criminal) No. 14589 of 2023 and therefore, in view of above, when the Hon’ble Supreme Court has also not granted bail to the present applicant looking to the seriousness of the offence and his past antecedents, this Court may in absence of there being any change of circumstances not enlarge the present applicant. 7. I have heard learned advocates for the parties and perused the record. On perusal of record, I found that the present applicant is in jail since 04.05.2023 i.e. since less than a year and he preferred first application for enlarging him on bail being Criminal Misc. Application No. 9945 of 2023, the same was withdrawn vide order dated 21.07.2023. Thereafter, the present applicant preferred successive bail application after filing of charge-sheet being Criminal Misc. Application No. 9945 of 2023, the same was withdrawn vide order dated 21.07.2023. Thereafter, the present applicant preferred successive bail application after filing of charge-sheet being Criminal Misc. Application No. 15043 of 2023 which was dismissed by a reasoned order dated 06.10.2023 and the aforesaid order was confirmed by the Hon’ble Supreme Court vide order dated 22.11.2023 passed in Special Leave to Appeal (Criminal) No. 14589 of 2023. 8. Thereafter, the only ground canvassed in this bail application is that when the accused no. 1 has preferred an application for further investigation under section 173 (8) of the Criminal Procedure Code, the said application is granted by the concerned trial Court and therefore, the same is likely to hamper the trial and the trial would be prolonged and therefore, the present applicant is required to be enlarged on bail. 9. Considering the fact that the accused no. 1 has preferred an application for further investigation being Criminal Misc. Application No. 2650 of 2023 wherein learned Additional Chief Judicial Magistrate, Idar has passed an order on 15.02.2024 allowing the aforesaid application but at the same time, he has also observed that considering the fact that the present applicant namely Abdulmajid Abdulsattar Memon is in judicial custody , such investigation should be completed at the earliest and at the earliest the report is required to be submitted. Meaning thereby, the Court was conscious at the relevant point of time that the present applicant is in jail and therefore, the aforesaid order was passed and therefore, the contention of learned advocate Mr. Bharda that the impugned order would prolong the trial is absolutely misconceived. 10. Therefore, considering the fact that the Court was conscious about the fact that the present applicant is in jail and therefore, the Court has taken care of interest of the present applicant and directed the Investigating Officer to complete the further investigation at the earliest. 11. Further if the present applicant is aggrieved by the aforesaid order, the applicant could have availed the appropriate remedy to challenge the aforesaid order, if he is entitled to do the same but the same cannot be used as a ground to seek bail and more particularly considering the fact that the role of the applicant was only one of the consideration while denying the bail to the applicant in the earlier round of bail application. One of the consideration by this Court was also the fact that there are already 14 offences registered against the present applicant and as submitted by learned APP Ms. Pathak the offences registered against the applicant are ranging from cheating, producing fraudulent documents, black mailing, siphoning off the amounts, creating obscene video clip, offence under the Arms Act, offence of rape, offence relating to dowry etc. Therefore, considering the totality of the facts and circumstances as well as considering the fact that even the Hon’ble Supreme Court has on consideration of the facts of the case denied the bail to the applicant vide its order dated 23.11.2023 in Special Leave Petition (Criminal) No. 14589 of 2023, I don’t see any reason to entertain this application and therefore, the same is required to be dismissed and the same is dismissed accordingly. 12. After the aforesaid order was dictated, learned advocate Mr. Bharda for the applicant submitted that out of fourteen offences alleged against the present applicant, in seven offences, he has been acquitted and two offences, the FIRs were quashed. However, considering the fact that still there are five offences pending against the present applicant, I do not see any reason to change the order which I have already dictated.