Jayrajsingh Digvijaysingh Rana vs State of Gujarat and 1 Another

Mukesh R. Shah, J.

1.0. Present Criminal Miscellaneous Application u/s 482 of the Code of Criminal Procedural has been preferred by the applicant-original accused no. 3 to quash and set aside the impugned FIR being CR-No-I-45 of 2011 registered with the Sanand Police Station, Ahmedabad for the offences punishable under Sections 467, 468, 471, 420 and 120B Indian Penal Code. As per the FIR lodged by one Shri Vipulbhai Harshadbhai Raja-President of Shri Supan Plot Owners Association-respondent no. 2 herein, in spite of the fact that the plots in question were never allotted in any manner in favour of original accused no. 1 shown in the FIR, the same have been disposed of by accused no. 1 illegally and by creating false documents in favour of accused no. 2 shown in the FIR. It is further alleged in the said FIR that the original accused no. 2, in turn, disposed of the plots by selling them of in favour of the present applicant who is shown as accused no. 3 in the FIR. Making above allegations, FIR has been lodged against the applicant and other accused persons for the offences punishable under Sections 467, 468, 471, 420 and 120B Indian Penal Code. Being aggrieved and dissatisfied with the same, the petitioner-original accused no. 3 has preferred Criminal Miscellaneous Application u/s 482 of the Code of Criminal Procedure to quash and set aside the impugned FIR.

2.0. Shri Baheti, learned advocate for the applicant-original accused no. 3 has vehemently submitted that applicant-original accused no. 3 has not committed any offence as alleged. It is submitted that as such the applicant is bona fide purchaser, who has purchased the plot in question from original accused no. 2. It is submitted that, in fact, the original accused no. 1 earlier sold the plot in question in the year 2010 in favour of some other persons and even thereafter the same came to be sold in favour of the petitioner. It is further submitted that as such the petitioner is bona fide purchaser and is permanent resident of Rajkot and other accused persons are belonging to Porbandar. It is submitted that, therefore, the other accused persons were not known to the petitioner earlier and therefore, the petitioner is bona fide purchaser.

2.1. It is further submitted by Shri Baheti, learned advocate for the petitioner that as such original accused no. 1 Pravinbhai Gangashanker Raval by way of making false and fabricated documents transferred the property in question to Janakben Pravinshanker Raval and subsequently accused no. 2 prepared one agreement to sell for the property in question to one Hothibhai Khunti and Samatbhai Aeodedara on 5.8.2010 and subsequently accused no. 2 has also sold the same property to the petitioner. It is submitted that in persons who prepared one agreement for the property in question namely Hothibhai Khunti and Samatbhai Aeodedara have instituted Special Civil Suit No. 370 of 2011 before the learned Civil Court, Ahmedabad (Rural) against the said Janakben P. Raval and the petitioner. Therefore, it is submitted that the petitioner is bona fide purchaser of the said disputed land. It is submitted that the dispute is of civil nature for which Civil Suit is pending. It is requested to exercise the powers u/s 482 of the Code of Criminal Procedure to quash and set aside the FIR by submitting that to continue the criminal proceedings against the petitioner would be abuse of process of law and Court.

3.0. Petition is opposed by Shri Dabhi, learned APP for the State as well as Rawal, learned advocate for the respondent no. 2. It is submitted by Shri Dabhi, learned APP that since March 2011, the applicant is absconding and is not cooperating the investigating officer. It is submitted that anticipatory bail application submitted by the applicant being Criminal Miscellaneous Application No. 5640 of 2011 has been rejected by this Court by observing that investigation is at very crucial stage and there are serious allegations levelled against the applicant. It is submitted that even the learned Single Judge has also considered the antecedents of the petitioner. It is submitted that even thereafter also the petitioner is absconding. Therefore, it is requested to dismiss the present application and it is requested not to exercise the discretionary powers u/s 482 of the Code of Criminal Procedure and not to quash and set aside the impugned FIR at the threshold without any further investigation.

3.1. Shri Dabhi, learned APP has further submitted that the case on behalf of the applicant that the applicant is resident of Rajkot and other accused persons are residing at Porbandar and were not known to each other and petitioner is bona fide purchaser of the plot in question is concerned, it is submitted that on investigation it has been found that the applicant and other accused persons were in fact known to each other. The applicant was earlier doing his business at Porbandar in the same locality. It is therefore, submitted that it is the case of the applicant that he is bona fide purchaser as he and other accused persons were not known to each other, cannot be believable at this stage. It is submitted that whether the applicant is bonafide purchaser or not is yet to be considered. Therefore, it is requested to dismiss the present application.

4.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the applicant and other accused persons are charged for the offence punishable under Sections 467, 468, 471, 420 and 120B Indian Penal Code. It is also alleged in the FIR that in spite of the fact that the plots in question were never allotted in any manner in favour of original accused no. 1 shown in the FIR, the same have been disposed of by accused no. 1 illegally and by creating false documents in favour of accused no. 2 shown in the FIR. It is further alleged in the said FIR that the original accused no. 2, in turn, disposed of the plots by selling them of in favour of the present applicant. It is also on record that with respect to very property there was one another transaction with other persons. It is the case on behalf of the petitioner that he is bona fide purchaser and in support of his above submission, it is submitted that the petitioner is permanent resident of Rajkot and other accused persons are residing at Porbandar and they were not known to each other. However, it has come on record that the applicant and other accused persons have known to each other as application was also carrying business at Porbandar and he was residing at Porbandar.

5.0. It is also required to be noted at this stage that the petitioner is absconding since March 2011 and is not cooperating the investigating officer. It is also required to be noted at this stage that even application submitted by the petitioner for anticipatory bail before this Court, has been dismissed by the learned Single Judge of this Court by order dated 6.6.2011 passed in Criminal Miscellaneous Application No. 5640 of 2011 and in paras 3 and 4 while rejecting the anticipatory bail, the learned Single Judge has observed as under:

It is the case of the prosecution that all the three accused named in the FIR, which includes the present applicant, hatched a conspiracy and as a part of the criminal conspiracy, forged certain documents including a power of attorney

It is the case of the prosecution that investigation is at a very crucial and delicate stage. The false documents like the power of attorney, allotment letters, transfer letters, 7/12 forms, etc. are yet to be recovered from the accused persons. It is also the case of the prosecution that the accused-applicant cannot be said to be merely a bonafide purchaser of the plots in question but, is a part and parcel of a well-hatched criminal conspiracy. A detailed affidavit-in-reply has been filed by Police Inspector i.e. the Investigating Officer of Sanand Police Station in this regard, which is on record.

Without entering into the merits and demerits of the case of the prosecution and without going into any further discussion, I am of the view that the accused applicant is not entitled to discretionary relief of grant of anticipatory bail, more particularly, when the investigation is at the very crucial stage and there are serious allegations levelled against the accused-applicant.

What is important is the tendency which the accused-applicant has displayed or exhibited in committing the offences. It appears that the accused-applicant has past antecedents also. The details are as under:-

i) Pradumannagar Police Station : I-CR No. 210/1999 for the offence under Sections 346, 347, 120-B of IPC.

ii) Gandhigram Police Station : I-CR No. 219/2005 for the offence under Sections 307, 188, 114 of Indian Penal Code and Section 25(1)(a)(b) of Arms Act.

iii) Gandhigram Police Station : I-CR No. 124/2007 for the offence under Sections 323, 504, 506(2), 114 of IPC.

iv) Gandhigram Police Station : I-CR No. 48/2008 for the offence under Sections 506(2) and 114 of IPC.

v) Malaviyanagar Police Station : I-CR No. 156/2008 for the offence under Sections 302, 449, 325, 504, 506(2), 201, 120-B, 188 of IPC and Section 25(1)(a)(b) of Arms Act.

It is also brought to my notice that village Sanand, which is at the outskirts of city of Ahmedabad, is a very fast developing area. The property prices over a period of time have escalated in leaps and bounds. Persons like the present applicant are habitually indulging in such type of offences of land grabbing. It is also brought to my notice that the entire land is worth more than Rs. 10 crores and the same have been disposed of in favour of the accused-applicant for Rs. 20 lakhs paid by cheque. Many such cases have been reported all throughout this particular area. I am also of the opinion that custodial interrogation in such type of cases is very much necessary.

I have also considered the recent pronouncement of the Supreme Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, , wherein the Hon''ble Supreme Court has laid down factors and parameters which can be taken into consideration while dealing with anticipatory bail. They are as under:-

(i) the nature and gravity of the accusation and the exact role of the accused must be property comprehended before arrest is made;

(ii) 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;

(iii) The possibility of the petitioner 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 petitioner 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) 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.

Taking into consideration the nature of the offence, the past antecedents of the accused-applicant and the tendency which he has displayed and exhibited in committing such type of offences, the accused applicant is not entitled to a discretionary relief of grant of anticipatory bail and, that too, at a stage when the investigation is still pending and is at a very crucial and delicate stage. The false documents which have been created are yet to be recovered from the accused persons. There is every likelihood that if the accused-applicant is released on anticipatory bail, it will hamper the investigation.

6.0. In view of the aforesaid facts and circumstances of the case, more particularly, it is found that that when the petitioner is not cooperating in the investigation and is absconding and considering the nature of allegations made against the petitioner and other accused persons, for which further investigation is required inclusive of custodial interrogation of the petitioner (as observed by the learned Single Judge while rejecting the anticipatory bail), it appears to the Court that this is not a fit case to exercise the power u/s 482 of the Code of Criminal Procedure and to quash and set aside the impugned FIR at the threshold and not permitting the investigating officer to carry out the investigation. Under the circumstances and for the reasons stated above, application deserve to be dismissed and is accordingly dismissed. Notice discharged.