RANUBHAI BHIKHABHAI BHARWAD VEKARIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Special Civil Application is directed against the order dated 30th August 1999 passed by the Police Commissioner, Vadodara City, whereby in exercise of powers under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985, the petitioner has been ordered to be detained. By yet another order dated 30th August 199, the petitioner was committed to Porbandar Special Jail, Porbandar. The grounds of detention have also been enclosed with the detention order along with other papers.

(2.) The case has a history of litigation of civil as well as criminal nature over land disputes between the petitioner on one side and the respondent no.4, namely, Mr.Jayesh Dave on the other side. The petitioner has come with the case that the land bearing Survey No.33 of village Akota admeasuring 14 lakh sq.ft. belongs to Hindustan Earth Movers (Pvt.) Ltd., a Company registered at Bombay. This Company was registered and incorporated by M/s.Pashabhai Patel and others. It is alleged that the said Company manufactures Tractors and earth moving equipments. This Company became a sick Company and therefore, several disputes arose in respect of the financial dealings of the said Company. It is alleged that the Hindustan Earth Movers (Pvt.) Ltd.. raised the loan from Bank of Baroda and defaulted in the repayment of the same. The Bank of Baroda therefore, failed a suit for recovery of the loan in the Bombay High Court in its original jurisdiction. The suit was decreed and, therefore, the Bank of Baroda moved the Honourable High Court of Bombay for execution of the decree and thereupon the Court receiver was appointed and the possession of the land in question was taken over by the Court receiver. The Director of Hindustan Earth Movers (Pvt.) Ltd. negotiated with the present petitioner and on 5th January 1996, an agreement to sell was sought to be executed. However, the said agreement could not be fully executed and thereafter a tripartite agreement was executed by and between the petitioner and one Mr.Lalit Mohanbhai Patel and the Hindustan Earth Movers (Pvt.) Ltd. on 1st November 1996. It has been further stated that after the execution of the tripartite agreement, a private treaty was recorded between Mr.Lalit Patel, Bank of Baroda and Hindustan Earth Movers (Pvt.) Ltd. which was placed before the Bombay High Court for its approval and as per the order passed by the High Court of Bombay on November 29, 1996, Mr.Lalit Patel was to deposit Rs.1 crore with the receiver within 15 days. However, the said amount could not be deposited with the Court receiver in time as directed by the Bombay High Court, but said Mr.Lalit Patel deposited Rs.1 crore with the Court receiver on June 9, 1997 and submitted an application before the Bombay High Court for condonation of delay in making the payment of the deposit. The case of the petitioner is that at this stage, respondent no.4 namely, Jayesh Dave intervened in the process and settled the dispute between Bank of Baroda and the Hindustan Earth Movers (Pvt.) Ltd. The Bank of Baroda then approached the Bombay High Court for withdrawal of the suit. The withdrawal of the said suit was permitted by the Bombay High Court conditionally, i.e. keeping the right in respect of the aforesaid transaction intact and granted permission to Mr.Lalit Patel to prosecute his rights before the appropriate forum. In this background said Mr.Lalit Patel filed Special Civil Suit No.692/97 in the Court of Civil Judge, Senior Division , Baroda for specific performance against the Hindustan Earth Movers (Pvt.) Ltd. and others. In the said suit, Mr.Lalit Patel submitted an application for interim relief at Exh.5. The said application filed by Mr.Lalit Patel was dismissed by learned Civil Judge, Senior Division, Baroda, by his order dated 5th March 1998. Aggrieved from this order passed by the Civil Judge, Senior Division, Baroda, Mr.Lalit Patel preferred an Appeal from Order No.141 of 1998 in this Court and the said Appeal from Order was dismissed by this Court vide order dated 4th May 1998. Said Mr.Lalit Patel preferred an Special Leave Petition being SLP No. 17187 of 1998 before the Supreme Court of India. This SLP was disposed of by the Supreme Court on 19th July 1998 observing that the petitioner of this SLP if so desires may prefer a review petition before the High Court. The petitioner has stated that as per his information, such a review petition preferred by Mr.Lalit Patel is still pending. The petitioner has alleged that on account of this litigation and feeling that the suit filed my Mr.Lalit Patel may be decreed and the sale in favour of the respondent no.4 may be declared to be illegal by the Court, he got panicky and started administering threats not only to the petitioner, but also to Mr.Lalit Patel and his family members. It has been then stated that when these threats did not work, the respondent no.4 threatened one Mr.Upendra Patel, the uncle of Mr.Lalit Patel and Mr.Lalit Patel in the Court on 5th February 1999 through one Mr.Arvind Jani in the Court premises itself. Mr.Upendra Patel and Mr.Lalit Patel were informed that if the cases are not withdrawn by the end of February, 1999, Mr.Upendra Patel will be killed. It is the say of the petitioner that the threats administered by respondent no.4 was executed on February 10, 1999. In fact, now from this date, the civil litigation as aforesaid takes a turn to the criminal litigation between the parties.

(3.) It is stated that Mr.Upendra Patel left his house with his friend at about 10.00 a.m. on February 10, 1999 and he was shot from point blank range by one unknown assailant who was guided by Mr.Arvind Jani. The bullet fired from the country made revolver pierced the face of Mr.Upendra Patel and landed on the shoulder of Mr.Pathan, the driver of the Car. The FIR was lodged by Mr.Ashok Patel, the nephew of Mr.Upendra Patel in Sayaji Ganj Police Station. The same was recorded as CR No.I-37/99. As a result of this shot, the upper jaws of Mr.Upendra Patel received a fractured injury as the bullet travelled in the straight direction and entered from the left cheek on the upper jaw and travelled in the straight direction coming out from the right jaw and landed on the shoulder of the driver. The injured persons were admitted in the hospital. A grievance has been raised that the investigating agency did not make any attempt to arrest the accused persons named in the FIR. Mr.Jayesh Dave being one of the accused named in the Fir, moved an application for his anticipatory bail which was rejected by the Sessions Court. It is alleged that at this juncture, Mr.Upendra Patel who was in the hospital was given a forcible discharge at the instance of respondent no.3 namely, Mr.Yogesh Patel, a sitting MLA of the ruling party. The Doctors attending Mr.Upendra Patel were pressurised by respondent no.3 MLA Mr.Yogesh Patel to discharge Mr.Upendra Patel so that it could be pleaded before the High Court that the injured had been discharged from the hospital and the accused may be granted anticipatory bail. It has also been stated that this incident has also been reported in the newspapers. A copy of the newspaper cutting as it appeared in 'Dhabkar' dated 28th March 1999 has been enclosed with the petition. While the anticipatory bail application moved on behalf of Mr.Jayesh Dave was pending before this Court, he was directed to appear before the I.O. on March 22, 1999 and as directed by the High Court, Mr.Jayesh Dave appeared before the Investigating Officer on March 22, 1999. It is alleged that when Mr.Jayesh Dave appeared before the Investigating Officer on March 22, 1999, Mr.Yogesh Patel made a telephone to the Investigating Officer and instructed him that Mr.Jayesh Dave should not be arrested and the statement of Mr. Dave should be recorded immediately and he should be allowed to leave the police station forthwith. It has also been alleged that Mr.Jayesh Dave used abusive language and threatened the Investigating Officer that the Commissioner was showing leaning towards the Congress Party and since Mr.Dave was the man of RSS, he has been harassed by the police. Whereas the MLA Mr.Yogesh Patel had threatened the Investigating Officer, the Investigating Officer reported the facts to the Commissioner of Police and also made an entry in the Station Diary bearing No.6/99 at 10.45 a.m. on that day, i.e. 22nd March 1999, nay, the said incident had been reported by a secret report bearing no.CP Confidential Outward Letter no.15 of 1999. It has been stated in para 21 of the petition that Mr.Jayesh Dave who is the donor of RSS, has donated a premises admeasuring about 5000 sq.ft. in the scheme named and known as 'Samrajya' which is being developed in the disputed land. It has been further alleged that the office premises as donated by Mr.Jayesh Dave to RSS, i.e. frontal organisation of BJP, i.e. party in power, RSS has publicly facilitated Mr.Jayesh Dave on March 2, 1999 and a newspaper report to that effect had also appeared in the 'Gujarat Samachar' published from Baroda. A copy of the said report published in Gujarat Samachar edition of March 3, 1999 has been enclosed with the petition. It is stated that similar report had also appeared in another newspaper namely, 'Sandesh', in its edition dated March 8, 1999, a copy of which has also been enclosed with the petition. It has been then alleged that since the RSS supports respondent no.4 Mr.Jayesh Dave, respondent no.3 Mr.Yogesh Patel, MLA has no option but to provide all political protection to respondent no.4 and so far, he has succeeded in scuttling the investigation of the offence committed against Mr.Upendra Patel and his driver. The anticipatory bail application moved on behalf of Mr.Jayesh Dave came to be withdrawn on March 26, 1999, but no formal arrest was made till May 20, 1999 though the incident had occurred way back on February 10, 1999. The first arrest was made on May 20, 1999. It is alleged that Mr.Arvind Jani and Mr.Kirtikant Soni were detained for interrogation on May 20, 1999 and were formally arrested on the same day at 11.30 hrs. These persons were produced before the Chief Judicial Magistrate who sent them to the police custody till 25th May 1999. After the remand was over, these persons submitted an application for bail which was granted by the Sessions Judge, at Vadodara. Thereafter, Mr.Jayesh Dave preferred an application for bail after his arrest. Mr.Jayesh Dave and Mr.Himanshu Desai were arrested on May 26, 1999 and were produced before the Magistrate on May 27, 1999 who granted police custody till May 28, 1999. These two persons namely, Mr.Jayesh Dave and Mr.Himanshu Desai moved the Sessions Court for bail after the expiry of the remand and the bail was granted on May 28, 1999. Yet another accused Mr.Rajendra Desai was arrested on 23rd June 1999 and the said accused was ordered to be kept in police custody till June 28, 1999 and Mr.Rajendra Desai moved an application for bail on June 28, 1999 which was granted by the Sessions Judge, Vadodara. According to the petitioner, the accused, namely, Mr.Rohit Shah had yet not been arrested and the unknown assailant was reported to be not traceable, by the police. The investigation officer was under tremendous pressure in view of the political connections of the respondent no.4 with RSS. The brother of Mr.Upendra Patel namely, Mohanbhai Naranbhai Patel therefore moved an application before the Court being Special Criminal Application No.728 of 1999 praying that the investigation of the aforesaid criminal case be handed over to the CBI since the local police was working under tremendous pressure of respondent no.3, i.e. MLA Mr.Yogesh Patel and the local police had not been able to carry out any fruitful investigation.