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2024 DIGILAW 801 (GUJ)

Shivam Niranjan Podar v. State Of Gujarat

2024-04-08

J.C.DOSHI

body2024
JUDGMENT : 1. By way of the present petition 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.I-11201017240001 of 2024 registered with CID Crime Border Zone, Kachchh (West), Bhuj Police Station. 2. The facts in nutshell leading to filing of the present application are as under. 2.1 According to the case of prosecution, it is alleged that Co-accused Shailesh Bhandari and Anurag Bhandari who are the owners of Electrotherm Company opened in the name of the complainant taking the original complainant into confidence. It is alleged that in order to avoid to pay money to the complainant, the accused persons persuaded the complainant to come to Ahmedabad and when the complainant was on his way, the co-accused persons from Electrotherm Company stopped his car and forcibly abducted him at gunpoint and brought to Ahmedabad. It is alleged that the complainant was then kept confined in a farm house and threatened with dire consequences. It is further alleged that the accused forcibly took signatures of Khushiben on blank paper and blank stamp paper and allegedly took Rs.20,00,000/- in cash and gold worth Rs.10,00,000/- from the house of complainant's mother and allegedly, took the complainant's car and three dumper vehicles of Mukesh Kripalani. It is alleged that the accused threatened the complainant and called his wife and forced her to sign a blank stamp paper and a blank check and allegedly withdrew Rs.45,00,000/- and Rs.10,00,000/- in cash. The applicant had informed accused No.1 that an amount of Rs.5,37,600/- belonging to the complainant is credit with him, which the wife of complainant Khushiben had given through two different cheques in 2015. That original complainant had demanded the amount from the applicant on 25.11.2017 and the applicant had informed the complainant that the said amount is already given to the Electrotherm company and that he should bring no objection certificate from the company. With the aforesaid allegations, the F.I.R. is registered. Hence, the present application. 3. Heard learned Senior Advocate Mr.S.I.Nanavati assisted by learned advocate Mr.Vipul Sundesha appearing for the petitioner, learned advocate Mr.Vishal Anandjiwala appearing for the complainant and learned APP appearing for the State. 4. With the aforesaid allegations, the F.I.R. is registered. Hence, the present application. 3. Heard learned Senior Advocate Mr.S.I.Nanavati assisted by learned advocate Mr.Vipul Sundesha appearing for the petitioner, learned advocate Mr.Vishal Anandjiwala appearing for the complainant and learned APP appearing for the State. 4. Learned Senior Counsel after taking this Court through the record of the present petition would submit that in the year 2015 the complainant has filed a written complaint before the Adipur Police Station (Annexure-R1). He would submit that in that written complaint, name of the present petitioner is missing. No allegations against the present petitioner is made in the written complaint. What is stated therein is only about the incident of abduction of the complainant by accused Shailesh Bhandari and others. He would further submit that since written complaint was not registered as FIR by the concerned Police Station, the petitioner moved the High Court of Gujarat by filing Special Criminal Application No.3424 of 2019 wherein the High Court of Gujarat after considering the report of the SIT, ordered to register the FIR. Even at that time, the name of the present petitioner was not there. He would further submit that the proceedings were unsuccessfully carried to the Hon’ble Supreme Court and meanwhile, one Mr. Pavan Kumar Gaur filed recall petitions before High Court of Gujarat seeking recalling of the orders, but in none of the proceedings the present petitioner was named. In nutshell it is submitted that the petitioner was never named in the proceedings which started in the year 2015 by filing written complaint before the Adipur Police Station which ultimately culminated into the present FIR consequent to the order passed by this Court unsuccessfully challenged before the Hon’ble Apex Court. 4.1 Learned Senior Advocate Mr.Nanavati would further submit that when the impugned FIR was registered by the Adipur Police Station, the name of the petitioner first time appears though he was not named in the written complaint. He would further submit that principal allegations against the accused are that of abduction of the complainant and to obtain the signature on the stamp papers, blank papers of the complainant as well as one Khushiben and also taking away Rs.20 Lakhs cash and gold ornaments of Rs.10 Lakhs etc. and also the Ciaz car and the dumpers etc. But in these allegations, the petitioner is nowhere involved. No role is attributed to the petitioner. and also the Ciaz car and the dumpers etc. But in these allegations, the petitioner is nowhere involved. No role is attributed to the petitioner. 4.2 Learned Senior Counsel would further submit that the petitioner is brought to the accusation only for the alleged incident took place in 2017 whereby the complainant has demanded amount of two cheques from the petitioner whereby the petitioner said that he has deposited the said amount of Rs.5,37,600/- being an amount of two cheques to Electrothem Company and the said amount can be released only after the complainant obtained NOC from the Electrotherm Company. It is submitted by the learned Senior Counsel Mr.Nanavati that this incident has been alleged to have been committed in hand-in- glow with the main accused Shailesh Bhandari and this alleged incident has been joined with incident of abduction took place in 2015. 4.3 Upon above submission, learned Senior Counsel for the petitioner would submit that the petitioner is falsely involved in the offence on the allegation that he has helped Shailesh Bhandari in commission of the offence. The petitioner is nowhere involved in the offence except taking up two cheques in 2017 and saying that the complainant is required to take NOC from Electrotherm Company. 4.4 Various documents on records are also referred to by learned Senior Counsel to submit that the petitioner is not involved in kidnapping offence nor involved in extortion offence nor involved in any other offence which is premier in the matter. Learned Senior Counsel would further submit that without prejudice to the contentions of the petitioner, the petitioner is ready and willing to deposit the amount of two cheques which comes near Rs.5,37,600/- before learned Trial Court. He would further submit that since the petitioner is not involved with the main and chief allegations has been linked with the main offence by putting some subsequent incident as part of the FIR. The petitioner is innocent and therefore, the petitioner may be enlarged on anticipatory bail. He would further submit that the petitioner has deep root in the society. He lives and belongs to Gandhiham, Kutch. He has movable and immovable property so there is no flight risk. The petitioner is ready and willing to cooperate with the investigation and since the petitioner has no antecedent, he may be enlarged on anticipatory bail. 5. He would further submit that the petitioner has deep root in the society. He lives and belongs to Gandhiham, Kutch. He has movable and immovable property so there is no flight risk. The petitioner is ready and willing to cooperate with the investigation and since the petitioner has no antecedent, he may be enlarged on anticipatory bail. 5. The pre-arrest bail has been hotly contested by the learned advocate Mr.Anandjiwala for the complainant He would submit that the petitioner is one of the main offender even in offence which took place in 2015 whereby the complainant was abducted. He was looted and his signature on the forged papers/ receipts were obtained. He would further submit that the complainant came to know about the false payment receipts whereby it is stated that Rs.5,37,600/- has been received to the complainant from one Mr.Shivam Poddar as the receipt dated 05.12.2015 is produced as part of the charge-sheet paper in an offence registered at Samakhiyali Police Station vide C.R.No.92 of 2015 against the present complainant. He would further submit that he put hypothesis that if the present petitioner is not linked with the main accused Shailesh Bhandari why he has obtained the receipt dated 05.12.2015 alleged to have been signed by the complainant and then stated that if the complainant wants back the amount, he has to take the No Objection from the Electrotherm Company belongs to Shailesh Bhandari as the petitioner has deposited said amount in the Electrotherm company. Therefore, he submits that though the alleged incident is shown to be of year 2017, it relates back to the incident of year 2015. He referred to the date of the receipt and submitted that the receipt is dated 05.12.2015. In FIR allegations are levelled by the complainant that the complainant was abducted from 01.12.2015 to 05.12.2015 and was forced to sign some papers including receipt which is forming the charge-sheet papers of C.R.No.92 of 2015 before the Samakhiyali Police Station. 5.1 In nutshell it is submitted by learned advocate for the complainant that the petitioner is involved in the offence since beginning. He is one of the close ally of main accused Shailesh Bhandari and he has played major but active role in the commission of the offence. Thus, prayed that petitioner may not be granted the anticipatory bail. 6. 5.1 In nutshell it is submitted by learned advocate for the complainant that the petitioner is involved in the offence since beginning. He is one of the close ally of main accused Shailesh Bhandari and he has played major but active role in the commission of the offence. Thus, prayed that petitioner may not be granted the anticipatory bail. 6. Learned APP adopted the arguments canvassed by learned advocate Mr.Anandjiwala and submitted that since the petitioner is involved in the offence since beginning and as petitioner is high handed person, he may not be given the anticipatory bail. 7. Having heard learned advocate for both the sides, at the outset, I may refer Section 438 of Cr.P.C. which reads as under : “438. Direction for grant of bail to person apprehending arrest.- [(1) Where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognisable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer incharge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.” 8. Section 438 is a procedural provision which is connected with the personal liberty of the individual who is entitled to plead innocence on the ground that he is not involved in the offence or is not on the date of the incident. Section 438 is a procedural provision which is connected with the personal liberty of the individual who is entitled to plead innocence on the ground that he is not involved in the offence or is not on the date of the incident. Remedy available in Section 438 of Cr.P.C. is purely discretionary but extraordinary remedy. The Court has to exercise discretion in accordance with the settled principle of law and not in derogation thereto. In Premshankar Prasad vs. State of Bihar - 2022 (14) SCC 516 , the Supreme Court held that it is somewhat extraordinary power. The relevant observation of the Hon’ble Supreme Court reads as under :- “The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.” 9. In Adri Dharan Das vs. State of West Bengal - 2005 (4) SCC 303 , the Hon’ble Supreme Court held that an order under Section 438 is a device to secure the individual's liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. 10. I may also refer to the judgment of Hon’ble Supreme Court in Jai Prakash Singh Vs. State of Bihar and another - 2012 Cri.LJ 2101, wherein the Hon’ble Apex Court held as under: "The court may not exercise its discretion in derogation of established principles of law, rather it has to be in strict adherence to them. Discretion has to be guided by law, duly governed by rule and cannot be arbitrary, fanciful or vague. The court must not yield to spasmodic sentiment to unregulated benevolence." 11. At this juncture, I may refer to judgment of Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. [2011] 1 SCC 694. In para 111 and 112, the Hon'ble Apex Court has held as under :- "111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. At this juncture, I may refer to judgment of Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. [2011] 1 SCC 694. In para 111 and 112, the Hon'ble Apex Court has held as under :- "111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. 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 accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. 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 the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. 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." 12. It is the case of the petitioner that since the written complaint which is converted into FIR is of the year 2015, the name of the present petitioner was not there in FIR and he has been falsely involved in the FIR for any subsequent incident whereas on other side it is the case of the complainant that the petitioner who is close ally of the main accused Shailesh Bhandari has played active role in an incident which took place in year 2015. What appears from the record prima facie demonstrate that in the year 2015 the complainant was abducted by the main accused Shailesh Bhandari and others. He was forced to sign some documents. The amount of Rs.20 Lakhs was looted and the gold ornaments of Rs.10 Lakhs were also looted. Apart from that one Ciaz car and three dumpers were also taken away. He was forced to sign some documents. The amount of Rs.20 Lakhs was looted and the gold ornaments of Rs.10 Lakhs were also looted. Apart from that one Ciaz car and three dumpers were also taken away. The first informant in the FIR also alleges that the accused named Baldev Raval and Sanjay Joshi came on 05.11.2015 and obtained the signature of the complainant on the receipt amount equal to amount of two cheques which indicates that the complainant has received the amount of Rs.5,37,600/- from Shivam Poddar which he had given to Shailesh Bhandari and no amount of two cheques bearing No. 695124 and 685125 each of Rs.2,62,800/- remains as outstanding. Now these receipts found in the charge-sheet papers filed in an offence registered with Samakhiyali Police Station vide C.R.No.92 of 2015. The petitioner tried to separate the issue by saying that there is an affidavit dated 18.05.2017 regarding these cheque amount and therefore it has no connection with the incident of abduction took place in 2015. While the issue needs to be tested during the investigation, prima facie what appears that the receipt dated 05.12.2015 is forming a part of charge-sheet (page no.175). It was stated that if the complainant wants back this amount, he has to take No Objection from Electrotherm Company. There is no explanation on the part of the petitioner that if the transaction of Rs.5,37,600/- is a private between the complainant and the petitioner, why said amount is deposited in Electrotherm Limited and why he insisted for taking No Objection from Electrotherm Limited. Another aspect remain masked that if transactions of two cheque took place in year 2017, why receipt which alleged to be forged is dated 05.04.2015 and forms part of charge-sheet papers of offence being C.R. No.92 of 2015 registered with Shamkhyali Police Station. Somewhere and somehow the alleged incident is connected with the main allegation of abduction. This is prima facie established. The allegations are serious in nature. Thus, the Court finds that in nature and gravity of the allegations, custodial interrogation is inevitable and under Section 438 of Cr.P.C., this Court does not find it fit to exercise the extraordinary jurisdiction in favour of the petitioner. No exceptional case is made out by the petitioner for grant of anticipatory bail. 13. In view of the above, the present petition stands dismissed. No exceptional case is made out by the petitioner for grant of anticipatory bail. 13. In view of the above, the present petition stands dismissed. It is needless to state that the observations made hereinabove are limited to decision of anticipatory bail and it shall not have any influence on merits of any other proceedings.