Jaswant Choudhary Son Of ... vs State Of Rajasthan
2022 Latest Caselaw 1686 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous (Petition) No. 2079/2022
Jaswant Choudhary Son Of Rikhabchand Jain, Resident Of
Munoth Nagar Bharmanand Marg, Beawar, District Ajmer (Raj).
(At Present Confined In Sub Jail, Beawar City).
                                                                  ----Petitioner
                                   Versus
State Of Rajasthan, Through P.P.
                                                                ----Respondent

For Petitioner(s) : Mr. Anil Kumar Upman, Advocate For Respondent(s) : Mr. G.S. Rathore, Government Advocate cum Additional Advocate General with Mr. F.R. Meena, PP for the State Mr. Rajneesh Gupta, Advocate Mr. Rajesh Chaudhary, RPS Additional S.P., Ajmer Range, Mr. Shokat, S.I.

Police Station Beawar City, Mr. Sanjay Sharma, S.I., Beawar are present-in-

person

HON'BLE MR. JUSTICE FARJAND ALI

Judgment / Order

23/02/2022

The instant miscellaneous petition has been preferred on

behalf of the petitioner who has been arrested in connection with

FIR Nos.501/2019, 456/2019 and 826/2021 registered at Police

Station Beawar City and made a prayer which is as under:-

"It is therefore humbly prayed that your lordships may graciously be pleased to accept this criminal misc. petition and further be pleased to call the entire record relating to the case from the investigating officer and same may kindly be examined and:

(i) the arrest of the humble petitioner in the three FIRs tracing their genesis to the same set of events and based on similar allegations may

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be declared as illegal and his personal liberty may kindly be ordered to be restored.

(ii) Suitable Criminal and departmental inquiry/action may be initiated against the erring Investigating Officer along with suitable action may be taken against the erring Superintendent of Police.

(iii) Any other appropriate relief may also be granted to the humble petitioners."

Heard learned counsel for the petitioner, learned Public

Prosecutor and the Investigating Officers present-in-person before

the Court. Gone through the content of all three FIRs as well as of

the FIR No. 876/2019, which has persuaded this Court to interfere

in the matter.

Brief facts of the case are as under:-

(a) FIR No.876/2019 came to be lodged at the behest of

one Surjeet against the present petitioner alleging therein that the

accused (present petitioner) was not the owner of the property

despite he was forcing the complainant to sign the documents

pertaining to the property but he executed an agreement to sell

purportedly executed in favour of the complainant. Reference of

some documents have also been made therein and thus, it is

alleged that the accused had committed offence falling under

Sections 415, 416, 417, 419, 420, 406, 464, 467, 468, 471, 384,

503, 120-B of IPC. The present petitioner who happens to be an

accused of this FIR made a challenge to the very lodging of the

FIR by way of filing a Criminal Miscellaneous Petition bearing No.

6610/2019. A Co-ordinate Bench of this Court after hearing all the

parties vide its judgment dated 22.11.2021 had quashed the FIR

and all consequential proceedings against the present petitioner.

(b) FIR No. 501/2019, the complainant of this FIR is the

present petitioner himself, wherein, allegations have been levelled

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against fourteen persons for alleged fraud committed by them in

respect of certain piece of land. Allegations of fabrication of false

documents have also been levelled against them. Interestingly,

the offence has not been found proved as alleged in the FIR and

no action has been taken against the fourteen persons who were

named in the FIR. The petitioner has been arrested in this case for

the cause of action which was not agitated in this FIR.

(c) FIR No. 456/2019, it came to be lodged at the instance of

son of the petitioner against some of the accused persons

regarding fraud and forgery committed by them. No action has

been taken against the persons named in the FIR, however, the

petitioner, who is the son of the complainant has been arrested for

a separate cause of action which is not recited in the FIR.

(d) FIR No.826/2021, this FIR came to be lodged at the behest

of one Tarun Kumar Prajapat regarding fraud and forgery of

certain piece of land situated in Beawar. This man has no personal

interest or grief in respect of the issue involved. The FIR has been

submitted by saying him to be a vigilant citizen. Having no right,

title, interest or possession over the property-in-question. It

seems to be a PIL in the form of an FIR.

As a matter of fact, no property has been transferred, the

title has not been transferred and no sale deed got executed; all

allegations resolves around different agreement to sell which are

neither properly stamped nor a registered document. No delivery

of amount was made by the complainant.

First of all; this Court deem it appropriate to discuss

regarding the FIR Nos. 501/2019 and 456/2019, both registered

at the instance of the petitioner and his son against fourteen

persons. A normal course of investigation would be either to reach

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on the conclusion that offence was found proved against the

alleged accused or offence was not found proved. In first situation,

the Investigating Agency is supposed to file charge-sheet against

the persons allegedly committed the offence or in second

situation, a negative final report (closure report) was supposed to

be submitted. In exceptional cases, when the allegations are

found false, then police may submit a complaint under Section

182 of the Cr.P.C. against the complainant who set the machinery

in motion and misdirected. Instead of the above; the petitioner

has been arrested, who is the victim of the case. He is arrested for

the accusation that he defrauded one Surjeet. Notably the FIR No.

876/2019 lodged by the Surjeet had been quashed by the High

Court.

Now comes to FIR No. 826/2021, in this case also no land

got transferred. No sale deed got executed, neither the

complainant had locus to file the FIR nor he incurred any loss. The

highest allegation as per the FIR has been that the named accused

Vinod Kumar, Bhagchand and Shanti Devi had sold the land

bearing khasra No. 1364 to the present petitioner through an

agreement dated 11.01.2007, it is alleged that the land was a

government land. Thus, the vendor Vinod Kumar, Bhagchand and

Shanti Devi had no right or title to sell the property to the

petitioner. Remember that the title of the property is intact till

date. The possession has not been disturbed. To the utter dismay,

as per the allegations levelled in the FIR, the principal accused

would be Vinod Kumar, Bhagchand and Shant Devi who allegedly

executed agreement to sell in favour of the petitioner. However,

the three vendors who purportedly sold the land to the petitioner

have not been arrested rather they were summoned by the

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Investigating Officer, their statements were recorded and a notice

under Section 41 of the Cr.P.C. supplied to them while giving

immunity from arrest. On the contrary the petitioner has been

arrested who simply was the buyer of the so called agreement to

sell dated 11.01.2007. This is nothing but rubbish and total mala

fide. First of all in view of the judgment passed by the Hon'ble

Supreme Court in Md. Ibrahim and Ors. Vs. State of Bihar and

Anr. (2009) 8 SCC 751 no offence of cheating, making a false

document and forgery is made out as the ingredients essential to

constitute an offence of cheating and making a false document are

conspicuously absent. No wrongful loss had occurred to any

person because the property has not been transferred, no

allegations that under the influence of inducement made by the

petitioner, the victim delivered certain property to him which he

won't do if such inducement had not been made. It is the

condition precedent for constituting an offence under Section 420

of the IPC. There is no allegations that document have been

prepared by the accused in the name of some other person or by

appending his forge signature for which the accused knew the fact

that the document was not prepared by that person. In this view

of the matter, the case does not come within the definition given

in Section 463 and 464 of the IPC. Yet affecting arrest of the

petitioner in these three matters is nothing but a gross abuse of

process of law. There is no justification of arrest of the petitioner

while leaving the vendors free. It appears that the Investigating

Officer of this case has been hand in gloves with the rivals of the

petitioner more particularly the man Surjeet whose FIR has been

quashed by this Court. There are supervening circumstances to

draw inference that only with a view to settle the score or to

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humiliate/intimidate the petitioner; he has been arrested. The

Investigating Agency is supposed to act or take action in

accordance with law only, their actions must fall within four

corners of law and their powers are not unfettered. The

discriminatory approach taken by the Investigating Officer in

adopting double standard of affecting arrest of petitioner only is

highly depricable, where similarly situated persons have been

treated differently. Rather the case of the petitioner is on better

footing then to the sellers. The action taken by the agency is

arbitrary and capricious. Not only the mandate of Section 41 of

the Cr.P.C. but also the judgment passed by Hon'ble the Supreme

Court in this respect have been flouted brazenly. Since, it has now

become abundantly clear that the arrest of the petitioner in these

three cases are bad in law, therefore, this Court is constrained to

declare the same illegal. The action taken by the Investigating

Officer is a case of colourable exercise of powers.

It is stated that a regular bail application of the petitioner is

pending consideration before the Co-ordinate Bench of this Court

and the same is going to be heard on 02.03.2022. This Court is

not supposed to transgress its limit or to interfere in the

jurisdiction of bail court yet when it has been find that there is no

justification for the arrest of the petitioner, his arrest seems to be

illegal, this Court, being the constitutional court cannot shut its

eyes to see further incarceration of the petitioner in jail.

It has been observed by Hon'ble the Supreme Court in the

landmark Judgment rendered in Joginder Kumar Vs. State of

U.P. and Ors. AIR 1994 SC 1349 which reads as under:-

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"18. .........The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do."

Guidelines have been issued by Hon'ble the Supreme Court

in Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273,

wherein reiterating the identical propositions, observed that the

arrest in the cases which are not punishable by more than seven

years should not be made until it becomes imperative. Arrest in

cases exclusively triable by the Court of Magistrate should have

also been avoided until and unless such situation is recorded that

there are inevitable circumstances to affect the arrest such as

need of custodial interrogation and recovery etc.

The fundamental rights have been guaranteed to every

person as enshrined in the Constitution of India that no person

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shall be deprived of his right to life and liberty accept the

procedure established by law. In the land mark judgment

rendered in Maneka Gandhi Vs. Union of India (UOI and

Ors.) AIR 1978 SC 597 Hon'ble the Supreme Court has

propounded that the procedure must be fair and reasonable and

should not be arbitrary and fanciful. The liberty of the petitioner

has been curtailed by an illegal arrest and thus his fundamental

right has been infringed, then why he should be allowed to remain

in custody for a single minute or a moment. The bail application is

to be heard and decided by the Co-ordinate Bench of this Court on

02.03.2022, therefore, honoring and maintaining the judicial

discipline; this Court deem it appropriate to pass an order of

interim release of the petitioner till the bail application is heard

and decided. His interim release would depend upon the outcome

of the order on bail application as would be passed by the bail

Court and certainly that would be the discretion of that court. This

order of interim release is made on this premise that when the

fact of illegal detention has brought into the notice of a

constitutional court, it can't shut off its eyes and allow

perpetuation of the illegal detention. What has happened cannot

be undone by the agency. The irreparable loss accrued to the

petitioner cannot be compensated in terms of money. He cannot

be suitably/ adequately and satisfactorily be compensated for the

period he had to languish in jail due to illegal action taken by the

police authorities. Thus, considering the over all aspect; this Court

deems it appropriate to pass an order of interim release of the

petitioner from jail. Accordingly, it is directed to the jailer, sub-jail,

Beawar to release the petitioner with immediate effect upon

furnishing of personal bond to the tune of Rs.50,000/-. The

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petitioner shall remain free until regular bail application is

disposed of by the Co-ordinate Bench of this Court. It is an interim

measure which would surely be the subject of outcome of the

order passed in bail application. In this mean period he shall be

deemed to be in constructive custody.

Before parting it is deem appropriate to direct the Director

General of Police, Rajasthan that in view of the perfunctory

manner in which the investigation has been conducted till date, he

shall entrust the investigation of this case to an IPS Officer of

Jaipur range with the clear instructions to conduct thorough

investigation and to submit the result as expeditiously as possible.

The newly appointed Investigating Officer shall place the progress

report before this Court on 28.03.2022.

Mr. G.S. Rathore, Government Advocate cum Additional

Advocate General is directed to take all the three files from the

present Investigating Officer and to send the same to the Director

General of Police under proper custody.

Put up on 28.03.2022 for further orders.

(FARJAND ALI),J

Mohita /171

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