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Date of Order:

HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE

Reportable

Mr. Anil Upman, for the petitioner.

Mr. Javed Choudhary, Public Prosecutor.

Heard learned counsel for the parties.

This anticipatory bail application has been filed by the accused petitioner in a Criminal Case arising out of FIR No.940/2008, registered at Police Station Vaishali Nagar, Jaipur City (South) for the offence under Section 420, 406, 467, 468, 471, 473 and 120-B IPC.

After filing of the application, when the matter was listed before the Court on 01.03.2012, the learned Public Prosecutor was directed to call for the case diary.

2. The prosecution case is that the complainant Naeem Sarwar was told by the accused Mohammad Musad Gauri and Zubeda Musad Gauri that property dealing is a good business in India. The complainant Naeem Sarwar is working in Kuwait. Further, the case of the prosecution is that the complainant had got transferred an amount of Rs.35,00,000/- in the account of the accused Mohammad Musad Gauri on 24.04.2005 and then in the year 2006, an amount of Rs.20,00,000/- was also given to him, from time to time. The accusation against the petitioner is that from the aforesaid amount, he had purchased a land in Jagdamba Colony and got flats constructed. Later on, the complainant came to know that the accused got the said flats transferred in his name and then sold them out. It is also the case of the prosecution that Plot No.12, situation in Rajendra Nagar, Sirsi Road, Khatipura, Jaipur was got transferred to the complainant on 13.04.2007 in the capacity of power of attorney holder. The complainant has alleged that the accused/petitioner got a forged power of attorney dated 16.06.2008 prepared and the said plot at Rajendra Nagar was transferred on 03.07.2008 by him, in conspiracy with Mohammad Rafiq Khan and Bhura.

3. After lodging of the aforesaid report, the police came in action and started investigation in the matter. Earlier, the co-accused Smt. Zubeda Musad Gauri, wife of the present petitioner, approached the High Court for grant of anticipatory bail (7803/2009) but the same was dismissed by a Co-ordinate Bench of this Court on 28.10.2009. From the record of the learned Public Prosecutor, it is revealed that on completion of investigation in the instant case, the police filed challan against the petitioner under Section 299 Cr.P.C. Now in the year 2012, the petitioner approached the Sessions Judge by filing an application under Section 438 Cr.P.C. The said application was dismissed by Additional District Judge No.5, Jaipur Metropolitan, Jaipur by the impugned order dated 07.02.2012. Hence, the present bail application under Section 438 Cr.P.C. has been filed before the High Court.

4. At the outset, the learned Public Prosecutor has raised objection with regard to grant of anticipatory bail on the premise that the investigation in the case has already been concluded and challan was filed against the petitioner under Section 299 Cr.P.C. and as such, the petitioner does not deserve the indulgence of anticipatory bail from this Court and the same be rejected.

5. The learned counsel for the accused petitioner has submitted that no case, as alleged by the prosecution, is made out against the petitioner. Further, he has submitted that in the facts and circumstances of the case, it cannot be said that the petitioner had committed any offence of cheating or forgery against the complainant. He has submitted that the petitioner deserves to be granted indulgence of anticipatory bail, in the present case. In support of his submissions, the counsel for the accused has placed reliance on the cases of (1) Ravindra Saxena, 2010 (1) WLC (SC) 171; (2) Siddharam Satlingappa Mhetre vs. Sate of Maharashtra & Ors., 2011 Cr.L.R. (SC) 1 and (3) Syed Jamir Hussai vs. State of Rajasthan, (S.B. Criminal Misc. Bail Application No.3188/2011), decided by the High Court of Rajasthan, Bench at Jaipur on 21.10.2011.

6. Learned Public Prosecutor, on the other hand, has strongly opposed the anticipatory bail application and submitted that in the facts and circumstances of the case, he should not be granted indulgence of anticipatory bail. He has submitted that the matter relates to the year 2008, wherein the investigation is already over and challan against the accused petitioner has been filed under Section 299 Cr.P.C., as he has been absconding. It has also been submitted that a similarly situated co-accused Zubeda Musad Gauri has already been declined the indulgence of anticipatory bail by a Co-ordinate Bench of this Court on 28.10.2009. Therefore, it was submitted that the anticipatory bail application filed by the accused petitioner be dismissed.

7. After considering the overall facts and circumstances of the case, as revealed from the material on record and on consideration of record of the learned Public Prosecutor, this Court is of the considered opinion that the instant case is not a one where the discretion vested with this Court under Section 438 Cr.P.C. should be exercised in favour of the accused petitioner.

8. The provisions with regard to anticipatory bail has come on the statute after the recommendations made by the Law Commissioner of India in its 41st Report dated 24.09.1969 and 48th Report given in the year 1972. The exercise of said power is the extremely important function by a Judge which is to be entrusted to those, having some experience. Therefore, the legislature, in its wisdom, has empowered only Sessions Court and High Court with regard to grant of anticipatory bail. The said power is discretionary and it depends on the facts and circumstances of each case. It is to be noted that in the instant case, prayer for anticipatory bail has been declined to the co-accused Smt. Zubeda Musad Gauri. The accusations against the accused, in the instant case, are definitely of a serious nature because he had received a large amount of money from the complainant, who had been made to trust him for the assurance given before parting with the same.

9. As regards the objection raised by the learned Public Prosecutor that in view of the fact that the petitioner had been absconding and challan has already been filed against him under Section 299 Cr.P.C. is concerned, it has force because a discretionary power is to be exercised only in a case of befitting nature. The accused petitioner had not only received money from the complainant but had cheated him by getting the investment made in his own interest and the accused has remained absconded all throughout, as a result of which challan has been filed under Section 299 Cr.P.C. The extraordinary power of anticipatory bail are not to be exercised when the accused is absconding and he has no right for the same. The said principle of law has been laid down by the Hon'ble Supreme Court in the case of Jagtar Singh vs. Satendra Kaur @ Bhavana Grover & Ors., 2002 Cr.L.R. (SC) 807.

10. Earlier to it, a Bench of this Court in the case of Munna Muni Khan vs. State of Rajasthan, 1996 Cr.L.J. 831, had observed that acquittal of co-accused person in a separate trial does not entitle an absconding accused to be released on anticipatory bail. Accordingly, the accused was directed to surrender before the learned trial court. Similarly, in the case of Bhoja Singh @ Bhoj Singh & Ors. vs. State of Rajasthan, 2001 Cr.L.R. (Raj.) 1, another Co-ordinate Bench of this Court had refused to grant anticipatory bail to an accused person, after taking into consideration the facts and circumstances of the case and by holding that it was not a fit case for the same. This Court also, in the case of Saroop Singh vs. State of Rajasthan, 2010 (3) WLC (Raj.) 764, had held that when a challan has been filed against the accused under Section 299 Cr.P.C. then he has no right for anticipatory bail.

11. So far as the case law cited by the counsel for the petitioner is concerned, it may be stated that the same are not at all applicable in the fact situation of the present case. Moreover, in the said cases, the principle of law laid down in the case of Jagtar Singh (supra) had not at all been considered. The case of Ravindra Saxena (supra) and Siddharam Satlingappa Mhetre (supra), were not the cases where the accused had remained absconded. As a matter of fact, those cases were not the one where challan had been filed under Section 299 Cr.P.C. on account of the fact that the accused had remained absconded. In the case of Sayed Jamir Hussai (supra), principle of law laid down by the Hon'ble Supreme Court in the case of Jagtar Singh (supra) was not considered. Similarly the case of Munna Muni Khan (supra), wherein also anticipatory bail was sought on the ground of acquittal of the co-accused persons in a separate trial, was not brought to the notice of the learned Court.

12. Besides, even on the merits of the case, this Court is of the view that the discretion of granting anticipatory bail should not be exercised in favour of the petitioner, particularly looking to the nature of accusation against him levelled by the complainant that a large amount was taken from him on the pretext of investing the same in real estate business. The accused had ultimately got the properties transferred in his own name. Not only that, when the complainant raised objection a plot was given to him which was subsequently taken away on the basis of forged power of attorney. Furthermore, looking to the seriousness of allegation, a Co-ordinate Bench of this Court had also refused to exercise the discretion of anticipatory bail in the case of Zubeda Musad Gauri. Therefore on both the counts i.e. on merits as well as parity, no case for anticipatory bail is made out in favour of the present accused petitioner.

13. Consequently, the prayer for anticipatory bail deserves to be rejected and the bail application is accordingly dismissed.

(RAGHUVENDRA S. RATHORE),J.

tikam daiya/-

Item no.176