Gujarat High Court
Nathubhai @ Mukeshbhai Bhavanbhai ... vs State Of Gujarat on 8 May, 2024
NEUTRAL CITATION
R/CR.MA/7096/2024 ORDER DATED: 08/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 7096 of 2024
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NATHUBHAI @ MUKESHBHAI BHAVANBHAI CHAUDHARI
Versus
STATE OF GUJARAT
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Appearance:
MR ZUBIN F. BHARDA for RAFIK LOKHANDWALA(5590) for the
Applicant(s) No. 1
MR JAY A TAMAKUWALA(11987) for the Respondent(s) No. 1
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
RONITH JOY(9560) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 08/05/2024
ORAL ORDER
1. Rule. Learned APP waives service of Rule on behalf of the Respondent State.
2. The applicant has filed this Application under Section 439 of the Code of Criminal Procedure for enlarging the applicant on Regular Bail in connection with FIR being C.R. No.2 of 2024 registered with Surat City A.C.B Police Station, District:Surat City for the offences punishable under Sections 7, 7A, 12, 13(1) and 13(2) of the Prevention of Corruption Act.
3. Heard learned advocate Mr.Zubin F. Bharda for the applicant. He submitted that the investigation of the offence is over and charge-sheet has been filed. It is alleged against the present applicant that he while working as Police Constable had demanded sum of Rs.1 lakh towards illegal gratification for not Page 1 of 6 Downloaded on : Thu May 09 20:47:07 IST 2024 NEUTRAL CITATION R/CR.MA/7096/2024 ORDER DATED: 08/05/2024 undefined implicating the first informant in the offence pertaining to GST. However, the matter was thereafter settled between the present applicant and the first informant for Rs.25,000/-, which was accepted by the other co-accused on behalf of the present applicant. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions.
2. The application is opposed by learned APP Mr.Tirthraj Pandya inter alia contending that the demand for illegal gratification had been raised by the present applicant. Initially the applicant had demanded sum of Rs.1 lakh, which was subsequently settled to Rs.25,000/- and the co-accused had accepted the said amount on behalf of the applicant. Thus, the involvement of the present applicant in commission of the offence is proved. Moreover, the voice spectrography test, to which the present applicant was subjected, indicates that telephone talk had taken place between the present applicant and the first informant, wherein the applicant had demanded a sum of Rs.1 lakh from the first informant. He therefore submitted that looking to the nature and gravity of offence, this Court may not exercise the discretion in favour of the applicant and the application may be dismissed.
3. Learned advocate Mr.Ronith Joy appearing for the original complainant has also opposed the present application contending that there was a room in the premises of the police station, wherein the CCTV camera were not installed. The said room was used by the present applicant and the other police personnel for torturing the persons and extortion. The said first Page 2 of 6 Downloaded on : Thu May 09 20:47:07 IST 2024 NEUTRAL CITATION R/CR.MA/7096/2024 ORDER DATED: 08/05/2024 undefined informant was also taken to the said room and was also tortured and sum of Rs.1 lakh was demanded from him. He further submitted that three victims have come forward and filed an affidavit before this court narrating the acts committed by the present applicant. These persons have also raised an apprehension as regards their safety, if the applicant is ordered to be enlarged on bail. He also submitted that after the registration of the FIR, the applicant was absconded for considerable long time and had been apprehended only recently. He therefore submitted to dismiss the present application.
3.1 Learned advocate sought to rely upon the decision of the Hon'ble Supreme Court in Special Leave Petition No.10499 of 2023 in the case of The State of Jharkhand Vs. Sandeep Kumar.
4. Heard learned advocates for the respective parties and perused the record. From the record it appears that the investigation is over and charge-sheet has been filed. The present applicant was working as Police Constable with Salabatpura police station. While working as such, as per the case of prosecution, some complaint was received by the police authorities against the first informant for having committed an offence pertaining to GST. Pursuant to the said complaint, the present applicant had summoned the first informant to Salabatpura police station and thereafter had demanded the amount of Rs.1 lakh from the first informant if he did not want to be implicated in any offence. After having raised the demand of Rs.1 lakh, the amount was settled between the parties for Rs.25,000/- which was allegedly accepted by the other co- accused on behalf of the present applicant, who was caught red Page 3 of 6 Downloaded on : Thu May 09 20:47:07 IST 2024 NEUTRAL CITATION R/CR.MA/7096/2024 ORDER DATED: 08/05/2024 undefined handed while accepting the amount.
5. The judgment which is sought to be relied upon by learned advocate for the original complainant pertains to grant of Anticipatory Bail, whereas in the present case, the applicant had already been arrested and charge-sheet has also been filed. The said judgment will not be applicable to the facts of the present case.
6. Having regard to the aforesaid aspects so also the seriousness of the offence and the allegations levelled against the present applicant, the application deserves consideration.
7. This court has considered the following aspects:
(a) As per catena of decisions of Hon'ble Supreme Court, there are mainly 3 factors which are required to be considered by this court i.e. prima facie case, availability of Applicant accused at the time of trial and tampering and hampering with the witnesses by the accused.
(b) That the learned Advocate for the Applicant has submitted that the Applicant Accused is not likely to flee away.
(c) That the Applicant is in custody since 30.1.2024.
(d) The law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I. Reported in (2012) 1 SCC 40.
8. Having heard the learned Advocates for the parties and perusing the record produced in this case as well as taking into consideration the facts of the case, nature of allegations, gravity of accusation, availability of the Applicant Accused at the time of Trial etc. and the role attributed to the present Applicant Page 4 of 6 Downloaded on : Thu May 09 20:47:07 IST 2024 NEUTRAL CITATION R/CR.MA/7096/2024 ORDER DATED: 08/05/2024 undefined accused, the present Application deserves to be allowed and accordingly stands allowed. This Court has also gone through the FIR and police papers and also the earlier order passed by the learned Sessions Court where the learned Sessions Judge has disallowed the bail Application at initial stage. The Applicant Accused is ordered to be released on bail in connection with the aforesaid FIR on executing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that he shall:
(a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.
(b) maintain law and order and not to indulge in any criminal activities.
(c) furnish the documentary proof of complete, correct and present address of residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not change the residence without prior permission of the trial Court.
(d) provide contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court.
(e) file an affidavit stating his immovable properties whether self acquired or ancestral with description, location and present value of such properties before the Trial Court, if any.
(f) not leave India without prior permission of the Trial Court
(g) surrender passport, if any, to the Trial Court within a week. If the Applicant does not possess passport, shall file an Affidavit to Page 5 of 6 Downloaded on : Thu May 09 20:47:07 IST 2024 NEUTRAL CITATION R/CR.MA/7096/2024 ORDER DATED: 08/05/2024 undefined that effect.
(h) not enter Surat City till the conclusion of trial except for attending the trial court.
9. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to furnish the solvency certificate if prayed for.
10. If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The Authorities will release the Applicant forthwith only if the Applicant is not required in connection with any other offence for the time being.
11. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order.
12. Rule is made absolute. Direct service permitted.
(M. R. MENGDEY,J) Manshi Page 6 of 6 Downloaded on : Thu May 09 20:47:07 IST 2024