AJENDRAPRASAD NARENDRAPRASAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner by way of filing this petition under Article 226/227 of the Constitution of India has prayed to issue appropriate writ, order or direction to quash and set aside the arrest warrant issued against the petitioner under Section 70 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr. P.C.") by the learned Judicial Magistrate, First Class, Nadiad, in the offence registered as I CR No. 4/2005 at Chaklasi Police Station, Dist. Kheda.

(2.) The facts disclosed from the record of the case are as under : On 8-1-2005 a complaint was lodged by Swami Dharmapriydasji of Vadtal Swaminarayan Temple before Chaklasi Police Station against five persons for alleged commission of the offences punishable u/s. 153A, 153B, 294, 295A, 120B of the I.P. Code and u/s. 5A, 5B and 9 of the Immoral Traffic(Prevention) Act, 1956 alleging that "Sadhus" of Swaminarayan Temple and Gurukul by their illicit sexual acts have defamed the whole religion and exploited women by videographing sexual acts. On the basis of this complaint offence was registered as I CR No. 4/2005 by Chaklasi Police Station against the persons named therein. Another complaint was lodged before D.C.B. Police Station, Ahmedabad which was registered as I CR No. 5/2005 for the offences punishable u/ss 292, 294, 295, 420 of I.P. Code as well as u/ ss 5 and 9 of the Immoral Traffic (Prevention) Act, 1956. The complaint lodged by Swami Dharmaprasaddas was investigated and some of the accused were arrested. The petitioner has averred that with reference to the complaint lodged with D.C.B. Police Station, Ahmedabad charge-sheet was filed against the arrested persons and the petitioner. As the petitioner was not available and absconding the Investigating Officer made an application before the learned Judicial Magistrate, First class, at Nadiad to issue non-bailable warrant against the petitioner. The learned Magistrate issued arrest warrant u/s 70 of the Cr. P. C. against the petitioner. It is the case of the petitioner that some of the "Sadhus" of Swaminarayan Sect have hatched a criminal conspiracy to rope the petitioner in criminal matters by implicating him in false cases. The petitioner is not named in any of the complaints. When the present complaint was filed, the petitioner was busy in pursuing civil matters from 10-1-2005 in the Hon'ble Supreme Court. The petitioner was present before this Court in the proceeding of Misc. Criminal Application No. 223 of 2005. Therefore, non- bailable warrant could not have been issued on the ground that he was absconding. It is further averred that when the petitioner was in Thane he was granted transit bail to enable him to approach the competent court at Nadiad for obtaining anticipatory bail u/s 438 of the Cri. P. C. A copy of the said order was served to the police station at Nadiad on 3-10-2005. But the police intentionally neither arrested the petitioner nor called him for interrogation in respect of this complaint. The petitioner has averred that the transfer of investigation to Nadiad Police Station is without jurisdiction and therefore neither Nadiad Police could have applied for non-bailable warrant nor the learned Magistrate could have issued the same. The petitioner filed an anticipatory bail application before Nadiad Court but the same was rejected. Thereafter, the petitioner approached this Court for anticipatory bail but the same was withdrawn on 29-12-2005 with liberty to file fresh application. The petitioner has remained present before various courts through his counsel while pursuing legal remedies. Therefore, the petitioner was very much available and there was no reason for the police to ask for arrest warrant against the petitioner. The learned Magistrate was not justified in issuing non-bailable warrant on the basis that the petitioner was absconding. It is further averred that Mr.KH.Savani, P.I., L.C.B., Nadiad Police Station wrote a letter to the Chairman of Shree Swaminarayan temple, Vadtal informing that the petitioner is one of the main accused and yet to be arrested. This conduct shows the intention of investigating agency that prior to filing of the charge- sheet the Chairman of the temple was informed about the development in investigation which is normally not revealed by the investigating agency. According to the petitioner the non- bailable warrant has been obtained by the Investigating Agency to cause damage to the public image of the petitioner and to harass him. The learned Magistrate has passed the impugned order without proper application of mind and therefore the order of issuance of non-bailable warrant against the petitioner should be set aside.

(3.) KS.Savani, P.I., L.C.B., Nadiad has filed affidavit-in-reply opposing admission of the petition denying the averments made in the petition, inter-alia, contending that during the course of investigation the statement of witnesses as well as co-accused were recorded which reveal that the petitioner has played active role in the commission of offences. It is alleged that the investigation is still going on and the Investigating Officer made several attempts but the petitioner has evaded arrest and therefore, as the petitioner was not available, the Investigating Officer made request to the learned Magistrate for issuance of arrest warrant u/s. 70 of the Cr. P.C. It is averred that the learned Magistrate after going through the record of the investigation passed the impugned order issuing the arrest warrant.