Satyajit Ballubhai Desai & Ors vs State Of Gujarat

3. Before we consider the justification and correctness of the impugned order permitting police remand of the appellants, the relevant factual details are required to be recorded which disclose that a lady named Surjaben widow of Badharsinh @ Babarsinh Chauhan aged approximately 80 years filed a criminal complaint before the Judicial Magistrate 1st Class (JMIC) , Valod in Gujarat being case No.3/2004 against the appellants alleging inter – alia that the husband of the complainant namely Badharsinh @ Babarsinh Ratnaji Chauhan had expired on 10.6.1967 and after his death and death of other brothers of the husband of the complainant, name of the complainant got entered in the revenue record. However, when the complainant obtained a copy of the revenue record in respect of the aforesaid land, she came to know that one Satyajitbhai Ballubhai Desai forged and created a bogus power of attorney at the instance of the owner of the property in the name of one Jaydipbhai Ranchhodbhai Solanki who is a fictitious person and on the basis of the bogus and fabricated power of attorney, he got executed a registered sale deed on 2.8.2003 in favour of a 3rd party without the knowledge of the complainant. The learned Magistrate sent the matter for investigation to the police which registered it as Talod M.Case No.1/2004.

4. The complainant apart from filing the complaint against the appellants also instituted a Regular Civil Suit No. 15/2004 in the court of learned Civil Judge (Jr. Division), Valod against the appellant No.1 herein for declaration, permanent injunction and cancellation of registered sale deed executed on 2.8.2003. However, on appearance of the appellant No.1 in the civil suit, a compromise came to be arrived at between the appellant No.1 Satyajit Ballubhai Desai and the complainant Surjaben wherein the parties agreed that the criminal complaint filed by the complainant will be withdrawn unconditionally. The learned Civil Judge accepted the said compromise and directed to draw a decree as per the terms of the compromise.

5. In view of the aforesaid compromise, the complainant as also the appellant No.1 appeared before the learned Judicial Magistrate First Class, Valod and prayed to withdraw the criminal complaint. In view of the request made by the parties, the Judicial Magistrate directed the Deputy Superintendent of Police Vyara to return the complaint by February 15, 2005. However, a third person and a stranger to the dispute namely Randhirsing Deepsing Parmar, who according to the appellants had nothing to do with the dispute between the complainant and the appellants herein, felt aggrieved with the order dated February 15, 2005 passed by the JMFC and filed a Special Criminal Application No. 918/2007 before the High Court of Gujarat challenging the order of JMFC by which the order of investigation in the complaint case had been directed to be returned.

6. The High Court, however, was pleased to allow this application and directed for investigation of the complaint which had been lodged by Surjaben. As a result of this order of the High Court dated November 30, 2007, the criminal complaint case No. 3/2004/Talod M.Case 1/2004 got revived in spite of the fact that a compromise decree had been drawn before the Civil Court in regard to the property for which criminal complaint had been lodged and the complainant had withdrawn the complaint but was revived by order of the High Court. The appellants, therefore, had to approach the High Court seeking anticipatory bail in the criminal complaint which was revived and the same was rejected but subsequently the High Court by order dated 23rd March, 2011 enlarged the appellants herein on regular bail. However, the Dy. S.P. Vyara only six days thereafter on 29.3.2011, filed an application before the Judicial Magistrate First Class,Valod Court, Valod seeking police remand of the appellants for seven days in connection with M.Case No.1/2004 based on the complaint of the complainant lady – Surjaben which had been registered with the Valod Police Station on the basis of the complaint lodged for offences under Section 406, 420, 467,468, 471, 504, 506 (2) and 114 of the Indian Penal Code and had been withdrawn but was later revived as stated hereinbefore.

18. In view of the aforesaid analysis of the legal position, we are of the considered opinion that the High Court as also the Judicial Magistrate were not legally justified in permitting the police remand of the appellants even for three days in the wake of the existing facts and features of the matter narrated hereinbefore. Consequently, we set aside the impugned order passed by the High Court as also the order dated 31.3.2011 passed by the Principal Civil Judge and Judicial Magistrate First Class, Valod permitting police remand of the appellants and thus allow this appeal.

July 20, 2012