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CR.MA/15100/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 15100 of 2010
=========================================
BHARATSINH
VIJAYSINH PARMAR - Applicant(s)
Versus
STATE
OF GUJARAT & 7 - Respondent(s)
=========================================
Appearance :
MR
EE SAIYED FOR MRSS MUMTAZ SAIYED
for Applicant(s) : 1,
MR
HL JANI, LD. ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
MR AD
SHAH WITH MR EKANT G AHUJA for Respondent(s) : 2 -
8.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/02/2011
ORAL
ORDER
By
way of present application filed under Section 439(2) of the Code of
Criminal Procedure, 1973, the applicant has payed to quash and set
aside the order of bail granted to the respondent Nos.2 to
8-original accused vide order dated 07th December 2010
passed by the learned Additional Sessions Judge, Surat in Criminal
Miscellaneous Application No.2280 of 2010.
The
short facts of the case is that the complaint is lodged at the
instance of the present applicant for the offences punishable under
Sections 467, 468, 471 and 465 read with Section 114 of the Indian
Penal Code and First Information Report is registered with Sachin
Police Station being I CR No.189 of 2010. It is the say of the
complainant that in the said offence, there is a fraud to the tune
of Rs.25 Crores to the nation. By order dated 01st
October 2010 passed in Criminal Miscellaneous Application No.11422
of 2010, the respondent Nos.2 to 8-accused persons were enlarged on
anticipatory bail by this Court. In that order, it was specifically
directed by this Court that the respondent Nos.2 to 8-accused
persons shall have to remain present before the concerned
Investigating Officer on 07th October 2010; however,
instead the said respondents-accused remained present on 04th
October 2010 before the Investigating Officer and the Investigating
Officer enlarged the respondents-accused on bail on 04th
October 2010. When the applicant came to know about the said order
dated 04th October 2010, immediately thereafter the
applicant filed Criminal Miscellaneous Application No.11987 of 2010
and vide order dated 06th October 2010, directions were
given that regular bail application filed by the respondent Nos.2 to
8-accused before the Sessions Court shall not be persuaded.
Thereafter, ultimately on 19th October 2010 this Court
has disposed of the said Criminal Miscellaneous Application with a
direction that present applicant can draw the attention of the trial
Court with regard to the facts of the case at the time of hearing of
the regular bail application.
During
the hearing of the regular bail application, the applicant requested
the learned Sessions Judge that they have approached the Hon’ble
Supreme Court of India for cancellation of bail granted to the
respondent Nos.2 to 8-accused and requested to adjourn the hearing
of the regular bail application, but the said request of the
applicant was rejected. Against the said order of rejection, present
applicant preferred Special Criminal Application No.2364 of 2010,
which came up for hearing before this Court on 02nd
December 2010. On that day, the learned trial Judge has already
concluded the hearing and posted the matter for pronouncement for
judgment. Though it was requested to the learned trial Judge that
the matter i.e. application for cancellation of bail, is pending
before the Hon’ble Supreme Court of India, the learned trial Judge
by his order dated 07th December 2010 allowed the regular
bail application of the respondent Nos.2 to 8-accused and enlarged
them on regular bail. Being aggrieved by the said order, present
application is filed by the applicant to cancel the regular bail
granted to the respondent Nos.2 to 8.
Heard
Mr.E.E. Saiyed, learned counsel for Mumtaz Saiyed, learned counsel
for the applicant, Mr.A.D. Shah, learned counsel with Mr.Ekant
Ahuja, learned counsel for the respondent Nos.2 to 8-original
accused and Mr.H.L. Jani, learned Additional Public Prosecutor for
the respondent No.1-State.
Mr.Saiyed
has contended that motive behind the offence is not to give excess
land to the government by taking benefit of provisions of the Urban
Land Ceiling Act, by way of producing false documents showing
several persons as minor as well as showing several persons on
record, who have not even existed and thus the respondents-accused
have committed various offences to the tune of crores of rupees. He
has also contended that the Investigating Officer has also filed
affidavit supporting the say of the applicant. He has also contended
that it is very clear that there is collusion of the accused persons
with the Officers of the Corporation. He has also contended that
Officers of the Corporation and accused persons have jointly engaged
advocate and moved bail application. From the beginning till today,
they are represented by the said common advocate. He has further
contended that though in the order dated 01st October
2010 granting anticipatory bail, it was specifically directed that
respondent Nos.2 to 8-accused shall have to remain present before
the concerned Investigating Officer on 07th October 2010,
they presented themselves before the Investigating Officer on 04th
October 2010 and on that day itself, the Investigating Officer has
released the respondent Nos.2 to 8-accused on anticipatory bail. He
has also contended that the respondents-accused were watching and
were well aware of the movement of the applicant and therefore, they
remained present before the Investigating Officer on 04th
October 2010 instead of on 07th October 2010 as directed
by this Court. Mr.Saiyed has also contended that conduct of the
Investigating Officer is also doubtful. He has also argued that
there is no necessity for the Investigating Officer to release the
respondents-accused on anticipatory bail on 04th October
2010 though they were to appear before him on 07th
October 2010 as directed. He has also contended that though the
applicant has made a request before the learned Sessions Judge that
as the applicant wants to challenge the order of granting
anticipatory bail before the Hon’ble Supreme Court of India and
requested the learned Sessions Judge to adjourn the matter on 10th
November 2010, the said request of the applicant was rejected on
23rd November 2010. Mr.Saiyed has also contended that the
learned trial Judge was not justified in turning down the request of
the applicant as the respondents-accused are on bail and no harm
would have been caused if the adjournment would have been granted.
He has further contended that when the applicant moved against the
above-said order of rejection of adjournment before this Court,
unfortunately when the matter came up for hearing on 29th
November 2010, the trial Court already concluded the hearing of the
matter and the same was kept for pronouncement of the judgment and
thus the said application has become infructuous. Mr.Saiyed has
further contended that when the applicant approached the Hon’ble
Supreme Court of India, at that time Bench was not available and in
the meanwhile, the learned Sessions Judge has granted regular bail
to the respondents-accused and therefore, the application filed
before the Hon’ble Supreme Court has become infructuous. He has also
vehemently argued that the anticipatory bail was refused by the
learned Sessions Judge on 18th September 2010, in which
it was observed by the learned Sessions Judge that accused have
prepared false documents, produced false certificates of the persons
who did not even existed and also produced seven forged School
Leaving Certificates to grab the land of the government. He has also
contended that the learned Sessions Judge has also observed in his
order that strong prima-facie case is made out against the
respondents-accused. Though these observations have been made by the
learned Sessions Judge while refusing the anticipatory bail, the
same Judge has allowed the regular bail application of the
respondents-accused, under the guise of grant of anticipatory bail,
ignoring these facts. He has also contended that, prima-facie, it is
proved that the School Leaving Certificates produced on record are
forged. He has also contended that present applicant has no personal
interest in the matter. He has contended that looking to the overall
facts of the case, present application is required to be allowed and
bail granted to the respondent Nos.2 to 8-accused is required to be
cancelled.
As
against this, Mr.A.D. Shah, learned counsel for the respondent Nos.2
to 8-original accused has contended that both, anticipatory and
regular bail, are granted with different observations and this Court
has taken care and thereafter only bail was granted to the
respondents-accused. He has also contended that the original accused
persons, who are the real culprits, have expired prior to the filing
of complaint. He has also contended that on 01st October
2010 anticipatory bail was granted to the respondents-accused and on
07th December 2010 regular bail was granted to the
respondents-accused. Mr.Shah has further contended that upto 07th
December 2010 the applicant has failed to obtain any orders from the
Hon’ble Supreme Court of India. Mr.Shah has further contended that
even applicant has never bothered to move any application before the
Court stating the fact that he has moved before the Hon’ble Supreme
Court of India for cancellation of anticipatory bail granted to the
respondents-accused with Special Leave Petition number between 23rd
November 2010 and 29th November 2010. He has also
contended that the present application is not a party to the
original proceedings. He has also contended that State is the
complainant. He has also contended that present applicant has
nothing to do in the complaint. He, therefore, contended that
looking to the overall facts and circumstances of the case as well
as evidence produced on record, present application deserves to be
dismissed and order granting regular bail to the respondents-accused
is required to be confirmed.
Heard
Mr.H.L. Jani, learned Additional Public Prosecutor appearing for the
respondent No.1-State. He has supported the case of the applicant
and contended that the learned Sessions Judge has committed grave
error in enlarging the respondents-accused on regular bail. He has
also contended that the respondents-accused have committed fraud to
the tune of Rs.25 Crores. They are involved in the serious offences.
He has contended that looking to the evidence produced on record,
present application is required to be allowed and order of granting
regular bail to the respondent Nos.2 to 8-original accused is
required to be set aside by this Court in the interest of justice.
I
have gone through the papers produced before me as well as case
dairy and police papers produced by Mr.Jani, learned Additional
Public Prosecutor. I have also considered submissions advanced by
the learned counsel for the parties. Looking to the papers produced
before me, it appears that the learned trial Judge in his order
refusing anticipatory bail dated 18th September 2010
observed that there is a strong prima-facie case made out against
the respondents-accused. The said learned trial Judge without
appreciating his own observations, enlarged the respondents-accused
on regular bail. It also appears that the learned trial Judge has
ignored the directions given by this Court while enlarging the
respondents-accused on bail. It also appears from the papers that
conduct of the Investigating Officer is also doubtful. When this
Court has given specific direction to the respondents-accused to
remain present on 07th October 2010 before the concerned
Investigating Officer, without any reason, the concerned
Investigating Officer has enlarged the respondents-accused on 04th
October 2010. This shows the conduct of the Investigating Officer.
It also appears from the papers that the respondents-accused have
forged the documents and grabbed the land. It is established that
the respondents-accused are land grabbers. The respondents-accused
are involved in such a serious offence by forging the documents. The
learned Judge has committed grave error in enlarging the
respondents-accused on regular bail ignoring his own observations
and directions given by this Court.
In view of above observations, I
am of the opinion that the respondent Nos.2 to 8-original accused
are involved in a serious offence. Hence, the order granting regular
bail to the respondent Nos.2 to 8-original accused is required to be
cancelled and is hereby cancelled. The order dated 07th
December 2010 passed by the learned Additional Sessions Judge and
Presiding Officer, Fast Track Court No.2, Surat in Criminal
Miscellaneous Application No.2280 of 2010 is hereby set aside. The
respondent Nos.2 to 8-original accused are directed to surrender
themselves before the Police Authority within a period of 10 days
from the date of this order. Rule is made absolute to the aforesaid
extent.
(Z.
K. Saiyed, J)
FURTHER
ORDER
After
the aforesaid order is passed, Mr.Shah, learned counsel for the
respondents-accused has submitted that as the respondents-accused
want to approach higher forum, some more time may be granted to
surrender themselves.
Considering the request made by
Mr.Shah, instead of 10 days, respondents-accused are directed to
surrender themselves before the Police Authority within a period of
30 days from the date of this order.
(Z.
K. Saiyed, J)
Anup
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