Gujarat High Court
Patel Nareshkumar Marghabhai vs State Of Gujarat on 23 October, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/17895/2023 ORDER DATED: 23/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE ANTICIPATORY
BAIL) NO. 17895 of 2023
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PATEL NARESHKUMAR MARGHABHAI
Versus
STATE OF GUJARAT
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Appearance:
ABHISST K THAKER(7010) for the Applicant(s) No. 1
MS CM SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 23/10/2023
ORAL ORDER
1. Apprehending his arrest, the applicant Patel Nareshkumar Marghabhai is seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure, in connection with FIR being CR No. I.13 of 2013 (11194005210013) with Ahmedabad City, ACB Police Station for the offences punishable under Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act, 1988.
2. The necessary facts giving rise to file the present application are that, the applicant Patel Nareshkumar was serving as Tax Officer (Ward Inspector) Division Commercial Tax, with Ahmedabad Municipal Corporation. In the month of February, 2017 and May, 2017, the victim witness Vaishnav Shatrugna Page 1 of 9 Downloaded on : Fri Oct 27 20:35:41 IST 2023 NEUTRAL CITATION R/CR.MA/17895/2023 ORDER DATED: 23/10/2023 undefined Murlidhar met the applicant herein for division of Tax Bills in connection with the joint property situated under the jurisdiction of the applicant. On 31.05.2017, the victim had applied for cancellation of commercial tax bill and asked the Corporation to convert it into residential zone as the property situated in the residential zone. The bill amount issued was Rs.2,75,000/-. Pursuant to the application, the applicant herein being Incharge of the ward, took visit the site and agreed to convert the commercial bill into residential purpose, for which, being a public servant, demanded 20% bribe amount. The entire conversation of demanding the bribe amount was recorded by the victim witness. The victim was not willing to give the bribe amount and had filed an application dated 17.10.2018 along with CD of recorded conversation with the Police Commissioner, ACB. The said application was transmitted to the ACB Police Station, Ahmedabad. The preliminary inquiry reveals the facts of demand of bribe money and accordingly, the FIR came to be registered on 30.12.2021 by the PI, ACB Police Station.
3. In nutshell, the applicant being a public servant, demanded an undue advantage as a motive or reward to do official work and thereby, committed an offence of criminal misconduct.
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4. Pursuant to the registration of the FIR, as a part of investigation, he was called upon and directed to remain present for voice spectrography so as to enable the investigation officer to verify the contents of the CD. The applicant refused to remain present for further investigation. The IO applied before the court concerned for necessary direction. The Court has directed to give voice sample for necessary investigation. Accordingly, the applicant remained present before the FSL. After examination of the voice samples, the FSL authority gave a positive report that, the voice of the CD's conversation is of applicant herein. Pursuant to said report dated 16.06.2023, the applicant did not cooperate with the investigation and by one or other pretext he is evading the process of investigation.
5. In the aforesaid facts, apprehending his arrest, the applicant moved an anticipatory bail application being Criminal Misc. Application No. 105 of 2022, which came to be rejected on 13.01.2022 by the Sessions Court with detailed reasons. The applicant came before this Court by preferring Cr.M.A. No. 2061 of 2022, which came to be withdrawn on 23.02.2022. The withdrawal was with a liberty to avail appropriate remedy before the court concerned.
Page 3 of 9 Downloaded on : Fri Oct 27 20:35:41 IST 2023NEUTRAL CITATION R/CR.MA/17895/2023 ORDER DATED: 23/10/2023 undefined After the FSL report and repeated calling him by the investigating agency, the applicant again moved an application for anticipatory bail (Cr.M.A. No.7761 of 2023), which also came to be rejected by detailed order on 23.09.2023 by the Court of Sessions.
6. In the aforesaid premise, the applicant is before this Court seeking anticipatory bail on the grounds mentioned in the memo of petition.
7. This Court has heard learned counsel Mr. Abhisst Thaker and Additional Public Prosecutor Ms. C.M. Shah for the respondent State.
8. Mr. Abhisst Thaker, learned counsel appearing for the applicant has submitted that since from the date of registration of the FIR, the applicant remained present with the office of ACB and his statements were recorded as a part of investigation. Even after the report of the FSL, reiterating the earlier version of his statement, made a written submission. In such circumstances, he submitted that the demand was made in the May, 2017, the complaint by the victim filed after long time and thereafter, in the year 2021, the FIR came to be lodged, which suggest that with a view to harass and humiliate the applicant, the proceedings being undertaken by the victim as well Page 4 of 9 Downloaded on : Fri Oct 27 20:35:41 IST 2023 NEUTRAL CITATION R/CR.MA/17895/2023 ORDER DATED: 23/10/2023 undefined as the police authority. That the applicant is innocent and he has been falsely implicated in the alleged offence, as, as such there is no recovery effected at the instance of the applicant. Therefore, the prima- facie based on the demand and audio recording, no case made out under Sections 7, 13(1) and 13(2) of the PC Act. That, the statement of the applicant as a part of investigation was duly recorded for so many times and therefore, no custodial interrogation is required and in that view of the matter, when the applicant having no any past antecedents and considering the nature of evidence collected during the course of investigation, the case is made out for exercising judicial discretion granting pre-arrest bail.
9. On the other hand, countering the submissions, learned Additional Public Prosecutor Ms. Shah has submitted that, there is a prima-facie case, against the applicant and considering the nature and gravity of the charge, the judicial discretion may not be exercised. She would further submit that, considering the nature of evidence collected during the course of investigation, it cannot be said that, the proceedings being initiated with malafide intention and to harass and humiliate the applicant and therefore, no exceptional case is made out to exercise the discretion.
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10. Having heard the learned counsel for the respective parties and on perusal of the case records, this Court is of prima-facie view that, the applicant being a public servant had demanded 20% of the commercial bill which was required to be converted as a residential property bill. The FSL report reveals that, the voice mentioned in the CD is matched with the voice of the applicant. In such circumstances, it cannot be said that the applicant has been falsely implicated and frivolous case is registered to harass him or tarnished his reputation. The applicant is facing the charges under the provision of the Prevention of Corruption Act. The Apex Court, time and again, in its various judgment, observed that, the grant of anticipatory bail in corruption matter, should be in rarest of rare case i.e. only in a case, where, public servant is falsely involved or allegations are with oblique motive or malafide, the Court should grant anticipatory bail.
11. It is the contention that, the applicant-accused has joined the investigation and his custodial interrogation is not necessary. This contention alone by itself cannot be a ground to grant anticipatory bail. Recently, the Apex Court in the case of Sumitha Pradeep Vs. Arunkumar C.K. and another (AIR Page 6 of 9 Downloaded on : Fri Oct 27 20:35:41 IST 2023 NEUTRAL CITATION R/CR.MA/17895/2023 ORDER DATED: 23/10/2023 undefined 2022 SC 5705), on the identical issue, held and observed that, in many anticipatory bail application matters, they have noticed one common argument being canvassed that, no custodial interrogation is required and therefore, anticipatory bail may be granted. On this aspect, the Apex Court, held that, there appears to be serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then, that alone, would be good ground to grant anticipatory bail. It is specifically clarified and observed by the Apex Court that, the custodial interrogation be one of the relevant aspect to be considered along with the other grounds, while deciding the application seeking anticipatory bail. There may be many cases in which custodial interrogation of the accused may not be required but that does not mean that, the prima-facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The Apex Court has further pointed out that the first and foremost thing that the court hearing an anticipatory bail application should consider, is the prima-facie case put up against the accused and therefore, the nature of offence should be looked into along with the severity of the punishment.
12. The next contention is that, there is a delay in Page 7 of 9 Downloaded on : Fri Oct 27 20:35:41 IST 2023 NEUTRAL CITATION R/CR.MA/17895/2023 ORDER DATED: 23/10/2023 undefined lodging the FIR and there is no acceptance of the bribe amount, which would raise the suspicion over the case of the prosecution. In this aspect, this Court is of the considered view that, delay factor itself cannot be a ground to grant anticipatory bail and the issue raised is required to be dealt with at the trial stage and therefore, for the constitution of offence, the pre-condition of demand is not satisfied, cannot be considered at this stage.
13. In the facts of the present case, it is apt to refer to and rely the observation made in the case of Varinderkumar Vs. State of Himachal Pradesh (2020(3) SCC 321), wherein, it has been held by the Apex Court that, individual rights of the accused are undoubtly important but equally important is the societal interest for bringing the offender to book and for the system to send a right message to all in the society - be it law abiding citizen or the potential offender. "Human rights" are not only of the accused, but extent apart also of the victim-the symbolic member of the society as the potential victim and the society as a whole.
14. For the aforestated reasons, when there is a prima-
facie case made out from the material on record and the relief sought being of extra-ordinary character, Page 8 of 9 Downloaded on : Fri Oct 27 20:35:41 IST 2023 NEUTRAL CITATION R/CR.MA/17895/2023 ORDER DATED: 23/10/2023 undefined for which no exceptional circumstances exist, I am of the view that, the application deserves to be dismissed and is accordingly dismissed. Rule is discharged. The observations made herein are tentative in nature and confined to present bail application.
(ILESH J. VORA,J) P.S. JOSHI Page 9 of 9 Downloaded on : Fri Oct 27 20:35:41 IST 2023