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CR.MA/1148920/2008 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11489 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE
H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MAHESHBHAI
HIMMATGIRI GOSWAMI & 2 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
MR
MEHUL SHARAD SHAH for Applicant(s) : 1 - 3.
MR AJ DESAI, APP for
Respondent(s) : 1,
MR MM TIRMIZI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 20/10/2008
ORAL
JUDGMENT
Rule.
Shri A.J.Desai, learned APP wavies service of rule on behalf of the
State.
This
is an application preferred under Section 438 of Cr.P.C. in
connection with the FIR bearing C.R.No.I-69 of 2007 registered at
Radhanpur Police Station for the offences punishable under Sections
465, 467, 471, 120-B and 114 of the Indian Penal Code. The learned
advocate for the petitioners submitted that the petitioners are the
Government Servants and the complainant is running Naimishh Gas
Agency at Radhanpur. On 19.5.2007, an investigation was carried out
by the District Supply Officer and his team and 64 statements of
consumers were recorded by them. Out of the 64 statements, one
statement which was recorded was of dead person and one statement of
Faiz Mohmmad was recorded wherein one line was added. It is alleged
that with a view to cancel the license, false record was created and
thereby, District Supply Officer and the petitioners i.e. Mamlatdar
and DSO have committed an offence punishable under Sections 465,
467, 471, 120-B and 114 of the Indian Penal Code.
The
learned advocate further submitted that the petitioners are innocent
persons and they have not committed any offence alleged against them
in the complaint and wrongly roped in. The petitioners even have not
abetted
or committed any offence in any manner whatsoever as alleged in the
FIR. It is submitted that considering Section
15 of the Essential Commodities
Act, it is clear that since the petitioners are public servants,
they recorded the statements of the consumers while discharging
their duties and therefore, no prosecution or legal proceedings
would lie against them. It is also submitted that even on earlier
occasion when the compliant was filed before the Radhanpur Police
Station, investigation was carried out and thereafter, DSP, Patan
came to the conclusion that no offence was made out and only
departmental inquiry was carried out. Thereafter, the FIR was
registered on 1.5.2007 and investigation was carried out by Dy.S.P.,
Patan. It is submitted that no evidence was collected by the
prosecution about the criminal intention on part of the petitioners
to record the statement of the dead person. The learned advocate
submitted that the offence punishable under Sections 465 and 471 of
IPC are bailable offence and prima-facie no ingredients of Section
467 are made out and therefore, it is a fit case to exercise
discretion in favour of the petitioners.
The learned
advocate has placed reliance on the FIR produced at Annexure-A to
the petition and the order passed by Superintendent of Police, Shri
D.B.Vaghela, Patan, dated 9.3.2007 in support of the submissions
that no offence can be said to have been committed by the
petitioners and thus, the learned advocate submitted that the prayer
as set out in the petition to enlarge them on anticipatory bail be
granted.
Learned APP
representing the State, while opposing the anticipatory bail
application, submitted that considering that the petitioners are
involved in a serious offence punishable under Sections 465, 467,
471, 120-B and 114 of the Indian Penal Code, no lenient view can be
taken in the matter. The petitioners have committed the offence
while discharging their duties as a Government servant and this fact
cannot be overlooked by the Court in deciding the anticipatory bail
application. The learned APP has placed reliance on the affidavit in
reply filed by Mr.K.M.Patel, Dy.S.P., Radhanpur and submitted that
considering the averments made in the affidavit in reply, no lenient
view should be taken in the matter and the application be dismissed.
The learned
advocate Mr.M.M.Tirmizi appearing for the original complainant
submitted that considering the fact that the petitioners have
committed serious offence punishable under Sections 465, 467, 471,
120-B and 114 of the Indian Penal Code while discharging their
duties as a Government servant, no lenient view can be taken in the
matter and no discretionary relief can be granted to the petitioners
as the powers under Section 438 of Cr.P.C. are required to be
exercised in very rare and exceptional circumstances. The learned
advocate has placed reliance on following judgments:-
(a) Adri
Dharan Das V/s. State of West Bengal, AIR 2005 SC 1057.
The learned advocate has placed reliance on this judgment rendered
by the Apex Court in support of the submissions that powers under
Section 438 of Cr.P.C. can be exercised in exceptional circumstances
and they are extra ordinary in character. The object which is sought
to be achieved by Section 438 of Cr.P.C. is that the moment a person
is arrested, if he has already obtained an order from the Court of
Session or High Court, he shall be released immediately on bail
without being sent to jail.
(b) The case of
Ramkishan Ramdhari Yadav V/s.
State of Gujarat reported in 2007(2) GLH 577 is the
judgment rendered by Gujarat High Court and the aforesaid judgment
is relied upon by the learned advocate in support of the submission
that powers under Section 438 can be exercised only in a rare and
exceptional circumstances.
(c) The case of
Mohmed Salim Abdul Rasid Shikh V/s. State of Gujarat reported
in 2001(2) GLR 1580 is the judgment rendered by this Court wherein
provisions of Sections 162 and 438 were considered and the Court
held that discretion in favour of the accused is required to be
exercised in exceptional circumstances. The Court further held that
it is a settled legal position that grant of anticipatory bail
stands on altogether a different footing that the grant of regular
bail. When a serious offence is registered against the accused and
police intends to arrest such accused for such serious offence at
the initial stage, even if Court feels that that apprehension of the
arrest in the mind of the accused in reasonable in that event,
various aspects needs consideration. One should not ignore the
spirit and object of the provisions of Section 438 of Cr.P.C. This
Court as well as the Apex Court, time and again have emphatically
propounded that the discretion in favuor of the person-accused
praying for anticipatory bail should be exercised sparingly.
(d) The case of
State of A.P. V/s. Bimal Krishan Kundu & Anr. is reported
in 1997 (8) SCC 104 and the learned advocate has placed reliance on
the judgment rendered by the Apex Court in support of the submission
that powers under Section 438 in favour of granting anticipatory
bail to the accused are required to be exercised in exceptional
circumstances.
(e) The case of
State V/s. Anil Sharma is reported in 1997 (7) SCC 187 and
relied on by the learned advocate in support of the contentions that
powers are grating the pre-arrest bail under Section 438 of Cr.P.C.
is required to be exercised with great care.
Thus, learned
advocate submitted that considering the role attributed to the
petitioners and the manner in which the offence is committed by
them, no lenient view is required to be taken in the matter and the
application deserves to be rejected.
I have heard
learned advocate Shri Mehul Sharad Shah for the petitioners and
learned APP Shri A.J.Desai and learned advocate, Shri M.M.Tirmizi,
for the original complainant in great detail and at length. The
petitioners are booked for the offence punishable under Sections
465, 467, 471, 120-B and 114 of the Indian Penal Code. As per the
prosecution case, the petitioners who worked as a Government servant
carried out the inspection and recorded the statements of 64
consumers. It is also alleged that out of 64 statements, one
statement which was recorded was that of a dead person and in
statement of Faiz Mohmmad one line was added and thus, with a view
to cancel the license, the petitioners made a license false record
and thereby, they have committed the offence punishable under
Section 465, 467, 471, 120-B and 114 of the Indian Penal Code. I
have perused the papers produced by the learned APP and the
statement on which the reliance is placed at the time of hearing of
the application. The detail affidavit-in-reply filed on behalf of
the State by Mr.K.M.Patel, Dy.S.P., Radhanpur, District: Patan is
also perused by me. It is stated in the affidavit-in-reply that at
the material point of time, the applicant No.1 was the Chief Supply
Inspector, applicant No.2 was Supply Inspector and applicant NO.3
was Dy. Mamlatdar. The applicants went for inspection of a Gas
Agency of the complainant on 19.7.2005, inspected the records
maintained by the applicants and recorded the statement of 64
persons. On the basis of the said inspection, the license of the
complainant for Gas Agency came to be canceled. Out of the statement
of 64 persons, statements of one Vora Abdul Barik Abdul Rasul was
also recorded. However, Vora Abdul Barik Abdul Rasul had
expired way back in the 20.4.1995 and as per the complaint, said
statement was recorded in the presence of applicant No.3. Another
statement of Meman Tejmohammad Umarbhai was also recorded at the
time of the inspection and subsequently as per the case of the
complaint, there were some alterations made in the statement. It was
also recorded in the presence of D.S.O. The aforesaid involvement is
a matter of investigation. It is also required to be investigated.
as to who had made the alleged alterations and at whose instances
such alterations are made.
In view of the
aforesaid facts and circumstances of the case and considering the
role attributed to the petitioners, the alleged involvement of the
petitioners in serious offence under Section 465, 467, 471, 120-B
and 114 of the Indian Penal Code the quantum of punishment etc., I
am of the view that the discretionary powers under Section 438 of
Cr.P.C. cannot be exercised in favour of the petitioners as the
powers under Section 438 of Cr.P.C. can be exercised in very rare
and exceptional circumstances.
Considering
manner in which the alleged offences are committed by the
petitioners and the seriousness of the offence in which they are
involved, no discretionary relief can be granted to the petitioners
and as the petition is devoid of merits and the same is liable to be
rejected.
For the forgoing
reasons, the petition is liable to fail and it is hereby rejected.
Rule discharged.
(H.B.ANTANI,
J.)
ashish//
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