IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 4934 of 2004 WITH CRIMINAL MISC.APPLICATION No 6052 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE K.A.PUJ ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- JITENDRA NARAYANBHAI RAJGOR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 4934 of 2004 MR PM THAKKAR WITH MR KJ PANCHAL for Applicant. MR AD OZA PUBLIC PROSECUTOR WITH MR AY KOGJE, APP for Respondent No. 1 - State. 2. Criminal Misc.Application No. 6052 of 2004 MR KJ SHETHNA WITH MR DAKSHESH MEHTA for Applicant. MR AD OZA PUBLIC PROSECUTOR WITH MR AY KOGJE, APP for Respondent No. 1 - State. MR SV RAJU for Original Complainant. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.A.PUJ Date of decision: 12/08/2004 COMMON CAV JUDGEMENT RULE. Mr. A.D. Oza, learned Public Prosecutor waives service of rule on behalf of respondent - State. 2. Since both these applications are arising out of the same offence, the same were heard together and are being disposed of by this common judgment. 3. The brief facts giving rise to the present applications are that one Mr. Manohar Mangaram Galani filed complaint against 19 named persons and also other accused persons whose involvement was disclosed during the course of investigation, bearing CR No. I - 1/1995, C.I.D. Crime, Vadodara Zone Police Station for the alleged commission of the offences punishable under Sections 120-B, 489, 348, 465, 466, 468, 471, 474, 409, 410, 109, 118, 167, 182, 114, 115, 219, 220, 506(2), 193, 195, 196, 199, 209, 200, 204 and 211 of I.P.C. 4. It is alleged in the said complaint that the complainant was doing work as the share broker in part time and that in March, 1992, there was a sharp rise in the share market. The original accused No.1 Kishor Keshwani who was the local resident had contacted the complainant for dealing in shares for sale and purchase of shares and that the said accused No.1 Kishor Keshwani had invested Rs.13 Lacs and suffered a loss. It is also alleged that the accused No.1 insisted the complainant to pay up the loss. However, the complainant was not liable and responsible for the said loss and on the contrary, the complainant had to recover the amount from the accused No.1 - Kishor Keshwani . It is further alleged that when the complainant insisted for settling the account, accused No.1 Kishor Keshwani got excited and gave threats that anyhow he would recover the loss from the complainant. The accused No.1 and his associates and relatives i.e. original accused Nos.2 to 13 had also given threats to the complainant. It is also alleged that because of the dispute and non-settlement of the account, the complainant had refused to part with the video cassette which the complainant was having with him. The accused No.1, had, therefore, brought heavy pressure on the complainant and gave threats that he would file false complaints in Courts of all over the State of Gujarat and would handcuff and would parade the complainant all over the Country. 5. It is also the case of the original complainant that thereafter the accused No.1 and others filed false complaints in different Courts of the State of Gujarat through fictitious persons and obtained non-bailable warrants against the complainant and his family members. It is also alleged that with the help of other accused persons - Police Officers i.e. from accused Nos.14 to 19, the complainant and his relatives were arrested and that the accused persons executed warrants by illegal means. It is also the case of the Complainant that the complainant and his family members were harassed by the Officers and were taken from one place to another and one after another such warrants were executed and the complainant and his family members had to undergo great mental torture. 6. Since the issue regarding issuance of non-bailable warrants, upon filing of bogus and frivolous complaints has come to the fore-front in the year 1994, a public interest litigation came to be instituted by practicing advocate of this Court vide S.C.A. No. 13258 of 1994 wherein the Division Bench of this Court on 20.12.1994 directed the Director General of Police, Gujarat State, to inquire about the said matter, and if necessary, to entrust the inquiry to the Competent Senior Officers of the C.I.D. Crime Branch and he was further directed to submit the report to the Court as early as possible. In pursuance of the said directions, the then Investigation Officer and the Additional Director General of Police filed various respective reports before this Court from time to time. During the pendency of investigation of C.R. No. I - 1/1995, the co-accused persons, namely, Kishor Keshwani and others preferred Special Criminal Application before this Court for quashing the F.I.R. and investigation in the said C.R. No. I - 1/1995 on the ground that there was a bar under Section 195 of Cr. P.C. to carry out the investigation in C.R. No. I 1/1995 since most of the offences alleged were covered under Section 195 of Cr. P.C., the said Special Criminal Application was admitted and ultimately allowed by this Court (Coram :- N.J. Pandya, J.) on 14.08.1997 and the criminal proceedings and investigation of the said C.R. No. I - 1/1995 were quashed. The Court has also dismissed S.C.A. No. 13258 of 1994 filed by the advocate of this Court being a public interest litigation. 7. The aforesaid order of this Court dated 14.08.1997 was challenged by the original complainant before the Hon'ble Supreme Court bearing SLP (Cri.) Nos. 3623 - 3628 of 1997 which have given rise to Criminal Appeal Nos. 1211 - 1216 of 1999 and the Hon'ble Supreme Court has quashed and set aside the order passed by this Court on 14.08.1997 vide its order dated 17.11.1999 and observed that it was rather premature for the High Court to come to the aforesaid conclusion and on account of the orders passed, the investigation into several serious allegations are being throttled. The Hon'ble Supreme Court has, therefore, set aside the orders quashing the complaints and investigation made thereunder and directed that those cases may be proceeded further in accordance with law. The Hon'ble Supreme Court has, however, made it clear that needless to mention that its setting aside the impugned order did not tantamount to expression of its opinion on merits and the accused, therefore, may not feel aggrieved and were entitled to take any appropriate remedy that was available to them under the law. 8. After passing of the aforesaid order by the Hon'ble Supreme Court of India, the co-accused, namely, Kishor Keshwani and 12 others have approached this Court for seeking anticipatory bail in the event of their arrest in the aforesaid C.R. No. I - 1/1995, on 19.11.1999, vide Cri. Misc. Application No. 6840 of 1999 and 7056 of 1999. Both these applications were rejected by this Court (Coram :- R.P. Dholakia, J.) on 28.07.2000 by observing that looking to the detailed complaint filed by the complainant and various other proceedings and documentary evidences, the Court was of the prima facie opinion that fair and just investigation was required to be done by the Investigating Officer in a case like this so as to reach at the roots of the offence. The Court was also of the view that if anticipatory bail was granted, then certainly, they would interfere with the investigation and thereby fair and just investigation would be hampered. Inspite of rejection of this application for anticipatory bail of the co-accused way back in July, 2000, the Investigating Agency was not able to arrest all the accused persons who are learnt to be absconding. 9. Since the name of the applicant in Cri. Misc. Application No. 4934 of 2004 was subsequently figured during the course of investigation and since the name of the application in Cri. Misc. Application No. 6052 of 2004 is already there in the F.I.R., they were apprehending their arrest and hence, initially, they have approached to the learned Sessions Judge, Fast Track Court, Baroda and on rejection of their applications for anticipatory bail, they have approached to this Court by filing the aforesaid two applications separately. 10. Mr. P.M. Thakkar, learned Senior counsel appearing with learned advocate Mr. A.J. Panchal for the applicant has submitted that the applicant was not at all concerned with the alleged offence. The applicant has no knowledge regarding commission of such offence at all. The complaint was filed on 03.02.1995 and it was alleged that the offence was committed from December, 1993 to 03.02.1995. Even in the complaint filed covering the incidents of above 1.1/2 years, no allegation whatsoever was levelled against the applicant. The name of the applicant was not at all mentioned or referred to in the complaint. It is the case of the prosecution that during the course of investigation, the name of the applicant was disclosed and even for this also, there is no direct, indirect or circumstantial evidence showing the involvement of the applicant. The main allegation against the applicant was that the warrants were handed over to the applicant for execution, though none of the warrants were addressed or directed to be executed by the applicant. The allegation was also against the applicant to the effect that in two warrants issued by learned Judicial Magistrate First Class, Padra, Dist. Vadodara against the complainant and his father were directed to be executed through P.I., Padra and in two other warrants, it is alleged to have been issued by JMFC, Padra, Dist. Vadodara and no direction was given to any person to execute the warrant. It is also alleged against the applicant that warrant issued by learned JMFC, Jamkhambhalia against the complainant and his brother was a Remand warrant and not arrest warrant. Some corrections were made and initially, the said warrant was addressed to Ahmedabad CID and thereafter corrected as "City Crime, Ahmedabad, D.C.P.". It was also alleged against the applicant that warrants were to be executed outside the jurisdiction and, therefore, the applicant without any lawful authority passed an order of execution of such warrants and thereby committed the said offence. 11. Mr. Thakkar has taken the Court to the various statements recorded by the Investigating Agency, during the course of investigation. Some of them are the statements of Mr. Pratapsinh Govindsinh Zala, Hemantkumar Ratanlal Vyas, Dilip Amrutlal Vyas, Suresh Ramchandra Kaloliya, Narendrakumar Harjibhai Sondarva, Prabhudas Natthubhai Majithiya, Chandravadan Dinubhai Joshi, Gorakhbhai Pitambarbhai Sonvane, Kantipuri Chhaganpuri Bava, Virendrasinh Gagubha Jadeja, Rajuji Bachuji Bihol and Prabodhchandra Dalpatram Bhatt. He has also invited the Court's attention to the letters dated 04.03.1994 issued by the applicant for execution of the warrant as well as the letter dated 09.03.1994 seeking permission to go to Bombay for execution of the warrant. Though he has not disclosed the source from where the applicant has got all these documents, according to him, it is the record of the Court and the applicant can have certainly an excess to such public record. He has submitted that none of these statements would show any kind of involvement of the applicant and whatever order was passed by the applicant for execution of the warrant was in discharge of his official duty. The applicant has neither taken any interest in any of the alleged criminal complaints nor played any role whatsoever in procuring the task of execution of warrants within his jurisdiction. Even if one would remotely canvass the case that there was some administrative lapse in execution of the warrants, the applicant cannot be held responsible for the same after the expiry of the period of more than 10 years. 12. Mr. Thakkar has further submitted that all the aforesaid allegations levelled against the applicant are absolutely unbelievable and they are not even probable. The incident referred to in the complaint had taken place prior to about 10 years and the applicant is not maintaining any record as he never knew that in future there would be allegation against him. That the applicant has no knowledge about any such warrants issued by the learned JMFC, Padra or Jamkhambhalia. The Investigating Agency has ignored the material aspect that the bailable warrants were issued by the learned Metropolitan Magistrate, Court No. 18, Ahmedabad and the same were to be addressed to and executed by the applicant. The execution of process is considered to be a table work and as per the routine, lower staff used to prepare the notes and such notes were placed only for passing of orders and relying upon the submission made by the lower staff, bona fide high officers used to pass the orders. Once the orders are passed by the Judicial Officer, the Police had no choice but to act as per the order passed and thus, the Police Officers were not required to take any decision or had no discretion to exercise and the same was a routine work. He has, therefore, submitted that looking to the complaint and also the case of the prosecution and the papers of investigation, the applicant has no connection whatsoever either with the complainant and his relatives or with the accused and his relatives. The applicant was not dealing in shares nor he was concerned with any share transaction either with the complainant or with the name of the accused. The applicant was also not concerned with the alleged dispute between the complainant and the accused. Even with regard to giving of threats by the accused No.1 to the complainant, the applicant was not in picture and at no point of time, the applicant either by himself or through his sub-ordinate staff gave any threat to the complainant or any of his relatives. Mr. Thakkar has further submitted that so far as filing of the false and fictitious complaints by fictitious persons at the instance of accused No.1 and his relatives in different Courts of the State of Gujarat are concerned, the applicant is in no way connected. It is not even the case of the complainant that before filing of such complaints, the applicant has ever been approached or contacted by any of the accused and that he was an instrument in filing such complaints in different Courts. Mr. Thakkar has further submitted that there is no evidence worth the name on record to show that the accused No.1 ever contacted the applicant during the entire episode and that the applicant was in know of the dispute between the complainant and the accused and was also in know of the alleged conspiracy hedged by the accused and his relatives. There is also no evidence worth the name to show that the applicant has ever accepted any bribe, commission or percentage and therefore, there is no offence under the Prevention of Corruption Act as far as the applicant is concerned. 13. Mr. Thakkar has lastly submitted that the applicant has not played any role and whatever was done during his tenure as D.C.P., Ahmedabad City, Crime Branch, Ahmedabad was part and parcel of his normal duty and administrative function. The applicant being a Senior High ranking Police Officer, the premature arrest without any sufficient evidence would ruin not only the whole career of the applicant but also of his dependents and it would cause irreparable loss to the applicant and his family members. Mr. Thakkar has further submitted that the applicant has all throughout fully co-operated with the investigation and his statement was also recorded. Mr. Thakkar has lastly submitted that there is no involvement in the main offence and if at all the case of the prosecution is accepted in toto, there is simple administrative lapse for which an application for anticipatory bail should not be rejected. Mr. Thakkar has further submitted that more than 10 years have passed and investigation is virtually over and all relevant materials etc. have been collected. Hence, there is no chance for tempering of the evidential witnesses in the case. 14. He has, therefore, submitted that the person in charge of the Vadodara Zone Police Station, CID Crime may be directed to release the applicant on bail in the event of his arrest in connection with C.R. No. I 1/1995. 15. So far as Cri. Misc. Application No. 6052 of 2004 is concerned, Mr. K.J. Shethna with Mr. Dakshesh Mehta, learned advocates appearing for the applicant have submitted that the applicant was totally bad ridden from 05.04.1993 to 30.11.1994 and despite this fact, the applicant was falsely involved in the case. Since the applicant came to know about this, he tendered his explanation with all documentary evidence to Addl. D.G.P., C.I.D. Crime, Gujarat by R.P.A.D. who received the same on 06.03.1995 and yet no one has investigated the same nor any statement of the Doctors or Hospital records have been collected. It is further submitted that the Investigating Agency presented Charge-sheet against 36 accused in which the applicant is shown as one of the accused and therebeing no evidence against the applicant, the applicant filed Cri. Misc. Application No. 5285 of 2004 before this Court for quashing the name of the applicant from F.I.R. No. I - 1/1995 and from the Chargesheet filed in C.R. No. I - 1/1995. The anticipatory bail application preferred by the applicant before the Sessions Court was also rejected on the flimsy ground and hence, present application is filed before this Court. 16. Apart from the factual background and the plethora of documentary evidence which shows that the applicant was not involved at all with the alleged offence, the attempt on the part of the Investigating Agency to procure the custodial interrogation of the applicant is contrary to the provisions of law. The bare reading of Section 195 read with Section 340 and 341 of Criminal Procedure Code which are mandatory provisions, the present criminal case No. I - 1/1995 filed by the complainant is absolutely illegal. The Hon'ble Supreme Court in the case of M. NARAYANDAS V/S. STATE OF KARNATAKA AND OTHERS, 2004 S.C.C. (CRI.) 118 has held that "Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once the investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance in view of the embargo in Section 195. If it is so and if accused are arrested during the investigation and if thereafter, the Court cannot take cognizance of present charge-sheet filed after investigation of F.I.R. No. I - 1/1995, whether they will remain in jail for life time and if not released on bail, whether their bail bonds will remain in force for life time ? These questions are not replied or explained by the Hon'ble Supreme Court. The only question decided by the Hon'ble Supreme Court at the relevant stage was whether the investigation should be permitted to proceed or not and, therefore, even if the applicant is arrested in F.I.R. No. I - 1/1995, it will be nothing but an illegal arrest. On this very issue, Special Criminal Application Nos. 132, 242 and 243 of 2004 have been admitted and rule have been issued. 17. Mr. Shethna has relied on the old decision of the Bombay High Court in the case of KESHAV VASUDEO KORTIKAR V/S. EMPEROR, AIR 1933 BOMBAY 492, wherein it is held that what weighs with the Court in granting bail is the guarantee that the accused will not either abscond or obstruct the prosecution in any way. The principal ground for the grant of bail is the certainty that it must be a very protracted and complicated case. 18. Mr. Shethna has further relied on the decision of the Hon'ble Supreme Court in the case of H.N. RISHBUD AND ANOTHER V/S. STATE OF DELHI, A.I.R. 1955 S.C. 196 for the purpose of explaining the scheme of the Code with regard to investigation. Under the Code investigation consists generally of the following steps :- (i) Proceeding to the spot; (ii) Ascertainment of the facts and circumstances of the case; (iii) Discovery and arrest of the suspected offender; (iv) Collection of evidence relating to the commission of the offence which may consist of; (a) the examination of various persons (including the accused and the reduction of their statements into writing, if the officer thinks fit, (b) the scheme of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (v) formation of the opinion as to whether on the material collected there is a case to place the accused before a magistrate for a trial and if so, taking the necessary steps for the same by filing of a charge-sheet under Section 173. 19. Mr. Shethna has further relied on the decision of the Hon'ble Supreme Court in the case of BHOLANATH AMRITLAL PUROHIT V/S. STATE OF GUJARAT 1970 (2) S.C.C. 414 for the proposition that an information laid before the Police or even a sanction granted for a prosecution by the Police would not meet the requirements of Section 72. 20. Mr. Shethna has further relied on the decision of the Hon'ble Supreme Court in the case of GURBAKSH SINGH SIBBIA V/S. THE STATE OF PUNJAB, A.I.R. 1980 S.C. 1632 for the proposition that this Court has got very wide power to impose conditions while granting anticipatory bail. The applicant shall co-operate to the investigation. The applicant shall not temper with any evidence or approach to any of the witnesses. It shall be open for the investigating agency to record statement of the applicant or ask for his remand. In absence of any evidence against the applicant, the custodial interrogation is not required at all. In view of these factual and legal submissions, Mr. Shethna has submitted that the applicant be granted anticipatory bail. 21. Mr. Shethna has further submitted that the applicant is a very Senior advocate practicing in the State of Gujarat, more particularly, in Baroda since last more than 36 years and the age of the applicant is 61 years. He is suffering from heavy hyper tension and heavy cronic diabetes for the last more than 15 years. The applicant's body is too heavy and in the month of Oct./Nov. 2003, he was admitted to S.S.G. Hospital for cardiac treatment for as many as 20 days and if he is sent in custody, it would be dangerous to his life and even on that ground also, the applicant should be granted anticipatory bail. 22. Mr. A.D. Oza, learned Public Prosecutor with Mr. A.Y. Kogje, learned Additional Public Prosecutor appearing for the State have strongly objected to grant of anticipatory bail in each of these two applications. Mr. Oza has further submitted that both the applicants are directly or indirectly involved in the criminal conspiracy hatched by the original accused to commit the offences of interference with the administration of justice by misusing the lawful authority of the subordinate judiciary for obtaining non-bailable warrants and or executing the same against various innocent persons on trumped up charges with the dishonest intention of extorting money and settling the disputes which were purely of civil nature. He has heavily relied on the reply filed in these two applications. 23. As far as Cri. Misc. Application No. 4934 of 2004 is concerned, Mr. Oza has submitted that the applicant in this application, at the relevant time, was a Deputy Commissioner of Police attached to the Ahmedabad City Crime Branch and the charges levelled against him are very serious in nature. A thorough investigation of the