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SUPREME COURT OF INDIA
G.S. Singhvi, Gyan Sudha Misra, JJ.
Satyajit Ballulbhai Desai and Ors. - Appellants
Vs.
State of Gujarat - Respondent
Criminal Appeal No. 1158/2012 (Arising out of S.L.P. (Crl.) No. 7821/2011)
Decided On: 20.07.2012
Criminal Procedure Code - Section 167 - Permanent injunction and cancellation – Jurisdiction – Witnesses or tampering with evidence - However, on appearance of Appellant in civil suit a compromise came to be arrived at between Appellant Desai and complainant wherein parties agreed that criminal complaint filed by complainant will be withdrawn unconditionally – Held, In fact correct course for investigating authorities seeking police remand of an accused who had been granted bail by High Court should have been to approach High Court as power of magistrate to grant police remand after accused has been granted bail by High Court, would cease to exist and any direction to that effect can be permitted by High Court only in view of fact that the High Court considered it just and appropriate to enlarge accused on bail and magistrate cannot be permitted to over-ride order of bail even if it be for a brief period of few days - This in our view is only appropriate course considering strict legal provisions in Code of Criminal Procedure wherein Legislature has earmarked minus period of transportation of accused from police station to magistrate as maximum period of police custody during initial stage and not more than fifteen days by order of Judicial Magistrate clearly is an indication that police custody cannot be permitted without adherence to strict judicial scrutiny from which it is obvious that it cannot be allowed without assigning clear and cogent reason for enhancement of period of police remand and same would all more be essential when police remand is sought for an accused who has been enlarged on bail by High Court - Inference is thus candid and clear that police remand of accused-more so who has been enlarged on bail cannot be granted for an undisclosed or a flimsy reason - Be that as it may fact remains that learned Magistrate as also High Court appears to have adopted a casual or a mechanical approach permitting police remand of Appellants without scrutinizing reasons ignoring fact that Appellants had already been enlarged on bail by High Court and dispute with the complainant who had lodged complaint had already been settled – Thus existing facts and circumstance prima facie were clearly not so grave or extraordinary justifying police remand which could have been overlooked by High Court even though it was for three days only as it was bound to have ramification not only affecting the liberty of the person who was already granted bail but also magistrate nullifying order of High Court granting bail even if it was for a period of three days only – Appeal allowed
JUDGMENT :
Gyan Sudha Misra, J.
1. Leave granted.
2. The Appellants herein have assailed the judgment and order of the High Court of Gujarat at Ahmedabad dated 29.09.2011 passed in Special Crl. Application No. 810/2011 alongwith Criminal Miscellaneous Application No. 11636/2011 whereby the learned single Judge was pleased to dismiss the applications and thus upheld the order passed by the learned Magistrate permitting police remand of the Appellants herein for three days for their interrogation in complaint case No. 3/2004 registered in the court of Judicial Magistrate (1st Class) Valod, Gujarat which had been referred to the police for investigation after which the said complaint was registered as Talod M. Case No. 1/2004.
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 Ci
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