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2024 DIGILAW 1097 (GUJ)

Balvantbhai Hirabhai Patel v. State of Gujarat

2024-05-02

J.C.DOSHI

body2024
ORDER : 1. By way of the present anticipatory bail application filed 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.11216011240149 registered with Infocity Police Station, Gandhinagar. 2. A criminal complaint being FIR no. 11216011240149 dated 21.03.2024 is registered with Infocity Police Station, Gandhinagar filed by the respondent no.2 after 23 years in respect of the mutation of entry made in the year 2001 being mutation entry no. 2314 upon the application of the complainant herself recording the legal heirs of the complainant way back in 2001 in respect of various parcels of lands, situated at Sargasan, District Gandhinagar. It is further submitted that land bearing survey Nos.217/4, 217/5, 218/2, 221, 222, 224, 225/1 etc. have been purchased by the complainant along with partner Narendrabhai Patel by registered sale deed and after deed of partition, land bearing survey Nos.221, 22, 231, 232, 234 and 235 came to the share of the complainant. However, the complainant came to know that one mutation entry was made in the revenue records being No.2314 and that her signature was forged by present petitioner and three others and therefore, present FIR is filed. 3. Heard learned Senior Counsel Mr. PC Kavina appearing with learned advocate Mr. RD Dave for the petitioner, learned advocate Mr. Dhruv Tolia for the original complainant and learned APP appearing for the State. 4. It is sought to be submitted by learned Senior Counsel Mr. PC Kavina that according to the FIR, alleged signature of the complainant is forged in the year 2001 and consequent thereto, revenue proceedings are taken place so also civil proceedings and as such, much water was flown, but the impugned FIR is filed by the complainant in the year 2024 without explaining any delay. He would submit that this issue alone runs in favour of the petitioner for grant of anticipatory bail. He would submit that silence of the petitioner for 24 years would presume that the impugned FIR is motivated and filed at the instance of some third party. 5. Learned Senior Counsel Mr. PC Kavina would further submit that for the alleged act of forging the signature is nowhere beneficiary to the petitioner, as upon such revenue proceedings, along with the petitioner, name of their brothers are also mutated. 5. Learned Senior Counsel Mr. PC Kavina would further submit that for the alleged act of forging the signature is nowhere beneficiary to the petitioner, as upon such revenue proceedings, along with the petitioner, name of their brothers are also mutated. He would further submit that that the mother of the petitioner is the complainant herein and she is 90 years old and she has filed complaint against her elder son, who is aging 70 years old, which prima facie indicates that the mother is under the influence of some third party and she has filed motivated and influenced FIR. He would further submit that the fact that the mother – complainant herein is under the influence of some third party could be demonstrated on the ground that upon the alleged forged signature of the complainant, mutation entry took place in favour of four brothers and not in favour of the petitioner. Yet, the complaint/ FIR is also filed against the present petitioner. The argument is also canvassed to the effect that subsequent to mutation entry, parcels of land were also sold by the complainant and that too twice Thus, he would submit that the FIR appears to be fictitious and filed after unexplained delay and thus, there is no reason to have custodial interrogation as everyone knows the case since the beginning. 6. Learned Senior Counsel Mr. PC Kavina has referred and relied upon judgment of the Hon’ble Apex Court in case of State of Karnataka Vs. L. Muniswamy and others reported in (1977) 2 SCC 699 to submit that the High Court has inherent powers and the Court should exercise such inherent power for degenerating the proceedings, which has been used as a weapon for harassment or persecution. He pressed into service para 7 of the judgment, which reads as under:- 7. The second limb of Mr. Mookerjee's argument is that in any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. The second limb of Mr. Mookerjee's argument is that in any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. So long as there is some material on the record to connect the accused with the crime, says the learned counsel, the case must go on and the High Court has no jurisdiction to put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that:- "If, upon consideration of the record of the case, and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." This Section is contained in Chap. XVIII called "Trial before a Court of Sessions." It is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceedings against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the new Code, which corresponds to sec. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the new Code, which corresponds to sec. 561-A of the Code of 1898, provides that: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has not to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.” 7. Learned Senior Counsel Mr. Kavina has also relied upon judgment of this Court in case of Bhumishth Narendrabhai Patel Vs. State of Gujarat rendered in Criminal Misc. Application No.21774 of 2023. 8. Taking this Court through the record of the present petition, learned Senior Counsel Mr. PC Kavina would submit that the FIR is filed at the behest of the complainant after SIT has filed report on 14.3.2024. State of Gujarat rendered in Criminal Misc. Application No.21774 of 2023. 8. Taking this Court through the record of the present petition, learned Senior Counsel Mr. PC Kavina would submit that the FIR is filed at the behest of the complainant after SIT has filed report on 14.3.2024. He would further submit that the collector is complicit with the complainant. Taking this Court through page 102, learned Senior Counsel Mr. PC Kavina would submit that the collector has also misread the judgment of the Hon’ble Apex Court and believed that at earlier point of time also, the petitioner had entered into serious offence of forging signature of the complainant to enter name of his son in bank account jointly held with the complainant and therefore, the FIR is registered with Satellite Police Station, but the Hon’ble Apex Court has quashed said FIR and in that circumstances, the FIR filed at Satellite Police Station remains to be non est. But taking of heed from such FIR, SIT in its report itself indicates that the collector plays hand in glove with the complainant. 9. It is also argued that civil litigation on same dispute is going on between the parties and reached upto higher stage. Thus, it can be presumed that alleged act being civil dispute has given colour of criminality. 10. Learned Senior Counsel Mr. PC Kavina would further submit that the police is also complicit with the complainant and hand in glove with the complainant and has persecuted the accused instead of prosecuting it. He would further submit that that the prosecution has tried to implant the accused in the offence, which is said to have been arisen in the year 2001. In addition to above, he would submit that in the present case, the petitioner is a 70 years old and he is permanent residents of Ahmedabad and is readily available for investigation and ready to cooperate with the investigation and no other antecedent is registered against the petitioner. 11. Upon such submission, learned Senior Counsel Mr. PC Kavina submits to allow this petition. 12. On the other hand, learned advocate Mr. Dhruv Tolia for the complainant would submit that the FIR is registered, as the SIT has directed S.P., Gandhinagar to register the FIR. The complainant is the mother of the petitioner. 11. Upon such submission, learned Senior Counsel Mr. PC Kavina submits to allow this petition. 12. On the other hand, learned advocate Mr. Dhruv Tolia for the complainant would submit that the FIR is registered, as the SIT has directed S.P., Gandhinagar to register the FIR. The complainant is the mother of the petitioner. He would further submit that ordinarily, mother would not file complaint against her son until some serious thing has happened. He would further submit that the present petitioner has prepared false signature of the complainant, the petitioner has also prepared false pedigree and kept present a woman similarly aged to the complainant before the Talati-cum-Mantri of Sargasan Gram Panchayat to confirm the pedigree so as to keep the entire transaction beyond the knowledge of the complainant. Record clearly demonstrates that as such, the petitioner has not only forged the signature of the complainant – mother, but also impersonated the complainant, which is prima facie proved from the report of the SIT. He would further submit that the revenue entry No.2314 was mutated upon such false signature and false pedigree. He would further submit that it was an attempt on the part of the petitioner with a view to grab the disputed land and immovable property belongs to the complainant, who is 90 years old mother of the petitioner. 13. Learned advocate Mr. Tolia would further submit that one Mr. Natvarsinh Rana was Panch witness No.2 in the panchnama prepared for the pedigree placed before the Talati-cum-Mantri. Learned advocate Mr. Tolia would further submit that perusing the report of the SIT, it appears that the SIT has taken notice of the statement of panch witness Mr. Natvarsinh Rana. 14. Learned advocate Mr. Tolia would further submit that there is no delay in lodging the FIR as it has been lodged immediately after the SIT has passed the order. He would further submit that mere lodging of FIR belatedly cannot be a reason to disbelieve the FIR. He would further submit that aspect of delay can be considered during the trial, where the complainant is examined on oath and question is put to him/her on delay aspect, whereby he or she can explain the delay in his or her cross-examination. He would further submit that law has not fixed any time in lodging the FIR. Hence, delay in filing the FIR itself is not illegal. He would further submit that law has not fixed any time in lodging the FIR. Hence, delay in filing the FIR itself is not illegal. He would further submit that indeed prompt and immediate lodging of the FIR is expected, but merely lodging the FIR belatedly would not be fatal to the case of the complainant on every point. 15. To meet with the contention of learned Senior Counsel Mr. PC Kavina that civil litigation is also filed by the complainant, learned advocate Mr. Tolia would submit that in given case, civil and criminal proceedings may proceed parallel. He would further submit that cognizance in criminal proceedings can also be taken by the criminal Court upon arriving at satisfaction that there exists prima facie case. Thus, merely filing the civil litigation by itself would not render that the litigation has been given colour of criminality. He would further submit that in a revenue proceedings, the SSRD has not passed any order in favour of the petitioner, but it has passed the order that outcome of the civil suit would govern the revenue proceedings of posting the entry. 16. In support of his submission, learned advocate Mr. Tolia referred to and relied upon following judgments:- 1. Shantaben Bhurabhai Bhuriya Vs. Anand Athabhai Chaudhari, 2022 (15) SCC 228 . 2. Ravinder Kumar and Anr. Vs. State of Punjab, 2001 (7) SCC 690 3. Syed Askari Hadi Ali Augustine Iman and Anr. Vs. State (Delhi Administration) and Anr., 2009 (5) SCC 528 4. Dodiya Navalsinh Babubhai Vs. State of Gujarat rendered in CRMA No.23421 of 2023. 5. Hasmukhbhai Rambhai Patel Vs. State of Gujarat, rendered in CRMA No.11254 of 2020 6. Sumeetha Pradeep Vs. Arun Kumar C.K & Anr., rendered in Criminal Appeal No.1834 of 2022 7. Akash Ganeshbhai Makwana Vs. State of Gujarat, rendered in CRMA No.20549 of 2023 8. Harisinh Abhesinh Parmar Vs. State of Gujarat, rendered in CRMA No. 13789 of 2020. 17. Upon such submission, learned advocate Mr. Tolia requests to dismiss the petition. 18. After adopting the arguments canvassed by learned advocate Mr. Tolia, learned APP would submit that there is no delay in lodging the FIR and it is immediately lodged after the SIT report has been filed. State of Gujarat, rendered in CRMA No. 13789 of 2020. 17. Upon such submission, learned advocate Mr. Tolia requests to dismiss the petition. 18. After adopting the arguments canvassed by learned advocate Mr. Tolia, learned APP would submit that there is no delay in lodging the FIR and it is immediately lodged after the SIT report has been filed. Thorough finding has been given by the SIT headed by the Collector, Gandhinagar, which indicates that present petitioner by forging the signature of the complainant, by preparing forged pedigree, by impersonating the complainant, by keeping present similarly aged lady as to the complainant before the revenue authority, has taken benefit of revenue entry in his favour and therefore, as prima facie case is made out against the petitioner, the petitioner may not be granted anticipatory bail. 19. Broadly speaking, if we go through the rival arguments canvassed by learned advocates for both the sides, learned Senior Counsel Mr. Kavina seeks anticipatory bail on the ground that FIR is filed belatedly and that the police as well as SIT are hand in glove with the complainant and as such, have given civil dispute a cloak of criminality. The other side opposing the bail would submit that the petitioner accused has forged the signature of the complainant, which prima facie proved before the SIT. The complainant has been impersonated by the petitioner accused as the petitioner kept one similarly aged lady present before the revenue officer to get the benefit of the entry in the disputed property. 20. Apt to note that the complainant is the mother and she is aged 90 years, she has filed FIR against her own elder son, who is aged about 70 years. The FIR is based upon the SIT report arrived at by the SIT headed by the Collector. The SIT report has menifestly observed and held that false signature of the complainant is made. The opinion is based upon the hand writing expert. The false pedigree is also prepared, wherein panch witness No.2 was Mr. Natvarsinh Rana. The statement of said Mr. Natvarsinh Rana indicates that he was not knowing the complainant and he has signed the pedigree/ panchnama, which was prepared for the purpose of getting the revenue No.2314 mutated in the revenue record, on the ground that on that day, he went to the Gram Panchayat, Sargasan and at that time, his relative Mr. The statement of said Mr. Natvarsinh Rana indicates that he was not knowing the complainant and he has signed the pedigree/ panchnama, which was prepared for the purpose of getting the revenue No.2314 mutated in the revenue record, on the ground that on that day, he went to the Gram Panchayat, Sargasan and at that time, his relative Mr. Ranjitsinh had come there and since the petitioner accused was knowing Ranjitsinh very well, upon insistence of said Mr. Ranjitsinh, said Natvarsinh Rana has signed the panchnama. Statement of Ranjitsinh also unfurl that along with one woman, one male person was also standing in revenue office, wherepon an application was given in name of Sushilaben (complainant) and pedigree was prepared on that application. It esply that panch witness Mr. Natvarsinh Rana was not knowing the person who was signatory to the application tendered to the revenue authority seeking pedigree. Later on, a woman similarly aged to the complainant was kept present before the revenue authority. This prima facie indicates that the petitioner accused has impersonated the complainant by keeping one woman aged similar to the complainant present to obtain false pedigree. This pedigree and false signature of the complainant were used to mutate entry No.2314. Even notice u/s 135(D) of the Bombay Land Revenue Code is not received by the complainant, but received by some third party, who was kept present by the petitioner accused. 21. It is true that as per version of the FIR, the petitioner accused has prepared false signature and false pedigree of back date of the year 2001, but the SIT has taken up the issue in recent past and directed the S.P., Gandhinagar to lodge FIR and pursuant to which, the impugned FIR has been lodged at the instance of the complainant. 22. What implies from above aspect, prima facie case is made out against the petitioner that he has forged the signature as well as pedigree. It cannot be said that filing of FIR is a persecution. The submission to the extent that SIT and police are hand in glove with the complainant is also unworthy of acceptance. 23. The record also reveals that one FIR being I – C.R. No.337 of 2007 was registered on 23.4.2007 with Satellite Police Station against the present petitioner. It cannot be said that filing of FIR is a persecution. The submission to the extent that SIT and police are hand in glove with the complainant is also unworthy of acceptance. 23. The record also reveals that one FIR being I – C.R. No.337 of 2007 was registered on 23.4.2007 with Satellite Police Station against the present petitioner. As per the allegation made in that FIR, the petitioner by forging the signature of the complainant, included name of his son in joint bank account of the complainant and thereafter, on the basis of withdrawal bank slip, an amount of Rs.10,50,000/- was withdrawn from the joint bank account. The quashing issue in this regard reached to the Hon’ble Apex Court by way of filing Criminal Appeal No.1420 of 2018. The Hon’ble Apex Court quashed the complaint since the settlement was arrived at between the parties, whereby the petitioner along with other accused has returned the entire amount of Rs.10.50,000/- with 12% simple interest from 1.6.2007. The relevant para of that judgment is para 6,7 and 9, which reads as under:- “6. Having heard learned counsel for the respective parties and considering the material on record and more particularly the opinion/report of the FSL produced at Annexure P-2 and the disputed documents D3 and D5 and the signatures of the complainant compared with her signatures on documents marked as D1, D2, D4 and D6 and looking to the relationship between the appellants and the original complainant of son, grandson and the mother/grandmother, we are of the opinion that to continue the criminal proceedings against the appellants would not be in the larger interest of the parties. Even otherwise on merits also, taking into consideration the report of the FSL (Annexure P-2) and the disputed documents D3 and D5, we are of the opinion that this is a fit case to quash the criminal proceedings against the appellants. 7. Even otherwise on merits also, taking into consideration the report of the FSL (Annexure P-2) and the disputed documents D3 and D5, we are of the opinion that this is a fit case to quash the criminal proceedings against the appellants. 7. Considering the fact that the dispute is between the mother on the one side and the son and grandson on the other side, with the consent of learned counsel for the respective parties and even as agreed by the learned counsel appearing on behalf of the appellants, we deem it appropriate to quash the criminal proceedings against the original complainant arising out of FIR being I-C.R. No. 337/2007 with the Satellite Police Station, in exercise of powers under Article 142 of the Constitution of India. However, at the same time, as agreed, the appellants shall return the entire amount of Rs. 10,50,000/- with 12% simple interest from 01.06.2007 till date to be paid within a period of one week from today and on that the present criminal proceedings against the appellants are hereby quashed and set aside. 9. In exercise of powers under Article 142 of the Constitution of India and with the consent of the learned counsel appearing for the respective parties and as agreed by the appellants, criminal proceedings against the complainant herein arising out of FIR being I-C.R. No. 337/2007 with the Satellite Police Station are also ordered to be quashed and set aside so that there may be cordial relations again between the appellants and the complainant herein - mother, son and grandson. We hope and trust that the wiser sense will prevail and there shall be cordial relations between the parties.” 24. This itself is indicative of that though the FIR registered with Satellite Police Station is quashed on consensus of the complainant, but it shows the modus operandi of the petitioner. The petitioner very lightly used to forge the signature of his mother and placed those documents before the concerned authority as genuine. The circumstance spells that this is a fit case for custodial interrogation. 25. In background of peculiar facts of the case, the judgments cited by learned Sessions Court Mr. Kavina are not rendering any help to the case of the petitioner. 26. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused, but several other purposes. 25. In background of peculiar facts of the case, the judgments cited by learned Sessions Court Mr. Kavina are not rendering any help to the case of the petitioner. 26. 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 applicant fleeing from justice and other factors to decide whether it is a fit case for grant of anticipatory bail. 27. 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. 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 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/applicant 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 applicant 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. 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". 28. Resultantly, present petition fails and stands dismissed.