CR.MA/1148920/2008 1/8 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 1. Rule. Shri A.J.Desai, learned APP wavies service of rule on behalf of the State. CR.MA/1148920/2008 2/8 JUDGMENT 2. 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. 3. 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 CR.MA/1148920/2008 3/8 JUDGMENT 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. 4. 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. 5. 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 CR.MA/1148920/2008 4/8 JUDGMENT 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. 6. 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 CR.MA/1148920/2008 5/8 JUDGMENT 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. CR.MA/1148920/2008 6/8 JUDGMENT (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. 8. 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. 9. 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 CR.MA/1148920/2008 7/8 JUDGMENT 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 CR.MA/1148920/2008 8/8 JUDGMENT alterations and at whose instances such alterations are made. 10.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. 11.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. 12.For the forgoing reasons, the petition is liable to fail and it is hereby rejected. Rule discharged. (H.B.ANTANI, J.) ashish//