Munna Babubhai Shaikh vs Intelligence Officer Narcotic ...
2021 Latest Caselaw 845 Guj

       R/CR.A/374/2019                                                IA ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

  CRIMINAL MISC.APPLICATION (TEMPORARY BAIL) NO. 5 of 2020
             In R/CRIMINAL APPEAL NO. 374 of 2019
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MUNNA BABUBHAI SHAIKH THRO TANVIRABANU MUNNABHAI SHAIKH Versus JAIL SUPERINTENDENT ========================================================== Appearance:

MR. HARDIK Y KOTHARI for the PETITIONER(s) No. for the RESPONDENT(s) No. MR KARTIK V PANDYA for the RESPONDENT(s) No. MS C. M. SHAH, APP for the RESPONDENT(s) No. ==========================================================

CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI Date : 20/01/2021 IA ORDER

1. The application has been filed by the applicant Munna Babubhai Shaikh through his wife Tanveerbanu Munnabhai Shaikh through learned Advocate Mr. Hardik Kothari seeking temporary bail of the applicant for a period of 30 days on the ground that the applicant's mother had expired on 15.10.2020 and he being the only male member in the family, his presence was required to perform the post ritual death ceremony and give moral and financial support to his family. The applicant has annexed the copy of death certificate of his mother Sanabanu Babubhai Shaikh allegedly issued by the Ahmedabad Municipal Corporation. The Coordinate Bench had passed the following order on 29.10.2020:

"1. Learned ASG Mr. Devang Vyas, assisted by Mr. Kartik Pandya, learned Central Government Standing Counsel appearing for respondent No.3

- Authority submits that, the date of death

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mentioned in the death certificate of Sanabanu Babubhai Shaikh (mother of applicant­ accused) is suspicious and requires thorough investigation.

2. In view of the statement made at the bar, let detailed report would be submitted by Ahmedabad Municipal Corporation with regard to the veracity of said death certificate of Sanabanu Babubhai Shaikh issued on 17.10.2020 by competent authority of AMC, latest by 14.12.2020.

3. Ms. Krina Calla, learned APP shall inquire about the same and inform the concerned department also for necessary steps at their end.

S.O to 15.12.2020."

2. Today, learned APP Ms. C. M. Shah has produced on record the copy of letter written by the Registrar, Birth and Death Department, Ahmedabad Municipal Corporation addressed to the Police Inspector, Vatva Police Station, Ahmedabad to the effect that no such death of Sanabanu Baubhai Shaikh was registered at the serial number 2020­DS0042­0000351 in the register of deaths of the year 2020. The said copy is taken on record.

3. Learned Advocate Mr. Hardik Kothari appearing for the applicant has also submitted that his client i.e. applicant had produced the forged death certificate with a view to obtain temporary bail.

4. It may be noted that the applicant has been convicted for the offences under the NDPS Act

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and has been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/­ by the Special Judge (NDPS) and 2nd Additional Session Judge, Sessions Court, Vadodara in NDPS Case No.6 of 2014. Being aggrieved by the said judgment, the applicant­ convict has preferred Criminal Appeal being No.374/2019, which is pending before this Court. Pending the said appeal, the present application was filed by the applicant seeking temporary bail for a period of 30 days on the ground that his mother had expired on 15.10.2020, as per the certificate issued by the Ahmedabad Municipal Corporation at Annexure­A. However, as per the communication issued by the Registrar, Birth and Death Department, Ahmedabad Municipal Corporation addressed to the Police Inspector, Vatva Police Station, Ahmedabad produced on record by learned APP, it clearly transpires that no such death of Sanabanu Babubhai Shaikh was registered at the number shown in the death certificate produced by the applicant. Under the circumstances, it prima facie transpires that the applicant had intentionally produced false and fabricated document for being used in the judicial proceedings as genuine document and thereby has prima facie committed the offences under sections 193 and 196 of IPC.

5. At this juncture, the reference to the provision contained in section 340 of the Code of Criminal Procedure, 1973 is required to be made, which

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reads as under:

"340. Procedure in cases mentioned in section 195. (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub­ section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,­

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non­ bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub­ section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub­ section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub­ section (4) of section 195.

(3) A complaint made under this section shall be signed,­

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(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this section," Court" has the same meaning as in section 195."

6. In view of the above, after making the preliminary inquiry the Court is of the opinion that the applicant has prima facie committed the offences under sections 193 and 196 of the IPC as referred to in clause (b) of sub­ section (1) of section 195 in respect of document produced and given in evidence in the judicial proceedings before this Court, and therefore a complaint is required to be lodged against the applicant as contemplated under section 340 of the Code of Criminal Procedure.

7. The Deputy Registrar (Judicial), High Court of Gujarat is appointed to make and sign the complaint and send it to the concerned Judicial Magistrate, First Class having jurisdiction.

8. The copy of this order be sent to the Superintendent of Jail, Central Jail, Vadodara, as well the Deputy Registrar (Judicial), High Court of Gujarat. Since the applicant is in jail there is no need to take security for the appearance of the applicant­ convict before the concerned Magistrate and he will be produced by the Jail Authority as and when required by the

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Magistrate.

9. The Superintendent of Jail shall make a mention of this order in every jail remarks that may be called for by any Court in respect of any application made by the applicant.

10. The present application is dismissed.

(BELA M. TRIVEDI, J) MEHUL B. TUVAR