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Gujarat High Court

Jeminiben Dasarathbhai Patel vs State Of Gujarat on 4 December, 2023

                                                                                  NEUTRAL CITATION




     R/CR.MA/18955/2023                              ORDER DATED: 04/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 18955
                           of 2023

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                          JEMINIBEN DASARATHBHAI PATEL
                                      Versus
                                STATE OF GUJARAT
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Appearance:
HARDIKKUMAR D RAO(8174) for the Applicant(s) No. 1
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 04/12/2023

                                  ORAL ORDER

1. By way of this petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release her on anticipatory bail in case of her arrest in connection with the FIR registered as C.R.No.05 of 2023 registered with A.C.B Police Station, Gandhinagar for the offence punishable under section 7,12,13(1)(A), 13(2) of Prevention of Corruption Act and under section 406, 420 and 114 of Indian Penal Code.

2. Brief facts of the case are as under :-

2.1. It is alleged in the complaint by the complainant that she has done GNM Staff course of Nurse and she was desirous of getting job in General Hospital and therefore, she contacted Jaiminiben who was working as Nurse in the General Hospital and she stated that she knows Naynaben and she will arrange to provide job. As the complainant and her relative were in need of Page 1 of 7 Downloaded on : Mon Dec 04 20:45:43 IST 2023 NEUTRAL CITATION R/CR.MA/18955/2023 ORDER DATED: 04/12/2023 undefined job, Jaiminiben arranged contact of Naynaben with the complainant and thereafter, Naynaben assured complainant for getting job for both and for which Rs.2,00,000/- per person and in total Rs.4,00,000/- was finalized. Out of said amount, Rs.2,00,000/- was paid in the office. Thereafter, complainant inquired about the appointment order. She could not receive information about the same. Therefore, complainant has filed complaint against the present petitioner and Naynaben.

3. Learned advocate for the petitioner submits that the petitioner has not played any active role. Victim / complainant was introduced to join Government Service as Nurse in General Hospital, Gandhinagar. In this circumstances, at the most it could be construed that the petitioner has facilitated complainant - Maulikaben and introduced her to Nainaben.

Apart from that the petitioner has not played any active or passive role in commission of offence. Learned advocate for the petitioner further submitted that prior to registration of FIR, the petitioner was called by the police multiple times. She has joined inquiry and co-operated in the investigation even before registration of FIR. He would further submit that the petitioner has not demanded any gratification nor accepted bribe money and not caught red handed with bribe money. In this circumstances, offence under Prevention of Corruption Act is not made out against the petitioner. He would further submit that when no offence of Prevention of Corruption Act is made out against the petitioner, bare offence under section 406 and 420 of IPC remains and except that there is no other offence against the petitioner. It is submitted that at earlier point of time, the Page 2 of 7 Downloaded on : Mon Dec 04 20:45:43 IST 2023 NEUTRAL CITATION R/CR.MA/18955/2023 ORDER DATED: 04/12/2023 undefined petitioner was called for voice spectrography and test of LVA by Investigating Officer. The petitioner has co-operated with the investigation and given LVA test. This prima facie prove nature and character of the petitioner. The petitioner is ready and willing to join investigation. The petitioner is permanent resident of Gandhinagar. She has no past antecedent and there is no flight risk as her entire family resides in Gandhinagar. Thus, he would submit to enlarge the petitioner on pre-arrest bail.

4. On the other hand, learned APP would submit that the petitioner has played role of middleman or tout. She has firstly introduced complainant - Maulikaben to principle accused - Naynaben and she has also talked with the victim and demanded money on behalf of Naynaben confirming bribe money. There are several audio clips taken by the Investigating Officer in the investigation. Voice spectrography test confirms voice of the petitioner in the audio clip. In that circumstances, it appears that the petitioner has played active role in commission of offence. He would submit that main accused - Nainaben did not get regular bail from the learned Sessions Court and she has withdrawn bail application from High Court of Gujarat as well. Thus, considering this aspect, he would submit that the petitioner may not be enlarged on bail as custodial interrogation is necessary.

5. Having heard learned advocates for both the sides, at the outset it is to be noted that exchange of bribe may not be essential requirement to be prosecuted under the Prevention of Corruption Act. Public servant may not get gratification directly Page 3 of 7 Downloaded on : Mon Dec 04 20:45:43 IST 2023 NEUTRAL CITATION R/CR.MA/18955/2023 ORDER DATED: 04/12/2023 undefined but through middleman or tout. Public servant who plays role of middleman or tout can also be prosecuted under the provision of Prevention of Corruption Act when prima facie it is proved that he / she has played active role in facilitating main accused to take bribe. On reading the FIR on record, it appears that the petitioner has played active role. She has introduced complainant to principle accused - Naynaben. Complainant intended to secure government job as Nurse. To be noted that the present petitioner is also Government servant. She was fully knowing that government job of Nurse cannot be directly available. Government job can be obtained only through competent examination etc. or by following procedure laid down therein. Yet the petitioner played active role as middleman or tout for the part of main accused - Naynaben. Exactly this role of petitioner is coming from the bare reading of FIR which also includes script of audio clip. Investigation papers indicate that as per FSL report, voice of the petitioner matches with the voice coming in the audio clip. In view of such aspect, contention of learned advocate for the petitioner that the petitioner has not demanded bribe or not accepted bribe cannot be accepted. It is merit-less and out-rightly rejected.

6. At this stage, I may refer to judgment of this Court in the case of Bharatbhai Somabhai Patni v/s. State of Gujarat [2018 (0) JX (Guj) 1031. In para 31, it is held as under :-

"31. The parameters for grant of anticipatory bail in a serious offence like corruption are required to be satisfied. Anticipatory bail can be granted only in the exceptional Page 4 of 7 Downloaded on : Mon Dec 04 20:45:43 IST 2023 NEUTRAL CITATION R/CR.MA/18955/2023 ORDER DATED: 04/12/2023 undefined circumstances where the Court is prima facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the applicant accused for grant of anticipatory bail and there is no frivolity in the prosecution. Merely because past two years, the Investigating Agency has not taken steps to arrest the applicant accused by itself is not enough to exercise discretion in favour of the applicant accused, more particularly, when the allegations are that of indulging in corruption."

7. I am also refer to judgment of this Court in the case of Rajesh Chandulal Shah v/s. State of Gujarat [2019 (3) GLR 1898]. In para 15, it is held as under :-

"15. If even a fraction of what was the vox pupuli about the magnitude of corruption to be true, then it would not be far removed from the truth, that it is the rampant corruption indulged in with impunity by highly placed persons that has led to economic unrest in this country. If one is asked to name one sole factor that effectively arrested the progress of our society to prosperity, undeniably it is corruption. If the society in a developing country faces a menace greater than even the one from the hired assassins to its law and order, then that is from the corrupt elements at the higher echelons of the Government and of the political parties.

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8. I am also refer to recent judgment of the Hon'ble Apex Court in the case of CBI v/s. Santosh Karnani [2023 Scale (6) 250] wherein it is held as under :-

"x. Reliance has been placed on the judgment of this Court in State Rep. By The CBI v. Anil Sharma1 to argue that "custodial interrogation is qualitatively more elicitation - oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the 1 (1997) 7 SCC 187.Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a prearrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual."

9. Considering script of audio clip in FIR, it appears that the petitioner has played active role and introduced complainant to principle accused. The petitioner has not played lesser role than principle accused more particularly when she was knowing fully well that Government job cannot be secured by any person but by government itself after following due procedure. What more appears that systematic scam headed by principle accused - Naynaben was running to dupe amount from service aspirant. Present petitioner is part thereof to play role of middleman or tout. Petitioner is integral part of well designed racket.

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10. The Court cannot be oblivious to the fact that corruption is rampant in the country and it erodes basic foundation of democracy. The reasons stated herein above indicate that the petitioner has no case to call for extraordinary relief of anticipatory bail. Considering the role of the petitioner along with gravity of offence, the petitioner cannot be granted pre- arrest bail. Resultantly, the petition is rejected.

(J. C. DOSHI,J) SATISH Page 7 of 7 Downloaded on : Mon Dec 04 20:45:43 IST 2023