Gujarat High Court
Chandubhai Mohanbhai Kumbhani vs State Of Gujarat on 4 August, 2014
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/10299/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 10299 of 2014
With
CRIMINAL MISC.APPLICATION NO. 11590 of 2014
Criminal Misc. Application No.10299 of 2014
CHANDUBHAI MOHANBHAI KUMBHANI
Versus
STATE OF GUJARAT
Criminal Misc. Application No.11590 of 2014
NARESH @ RUPABHAI BHOGLAMAL MANKANI
Versus
STATE OF GUJARAT
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Appearance IN Criminal Misc. Application No. 10299 of 2014:
MR YOGESH LAKHANI, SR. COUNSEL WITH MR. ASHISH M DAGLI, ADVOCATE for the Applicant MR RC KODEKAR, APP for the Respondent Appearance IN Criminal Misc. Application No. 11590 of 2014:
MR NIRUPAM D NANAVATI, SR. COUNSEL WITH MS. TEJAL A VASHI, ADVOCATE for the Applicant MR RC KODEKAR, APP for the Respondent ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 04/08/2014 ORAL COMMON ORDER 1 By way of the present two different applications under Page 1 of 13 R/CR.MA/10299/2014 ORDER Section439 of the Code of Criminal Procedure, 1973, the applicants accused have prayed to release them on regular bail in connection with the FIR registered at CR No. I37 of 2013 before DCB Police Station, Surat, for the offenses punishable under Sections 213, 214, 217, 120B of the Indian Penal Code and under Sections 7, 8, 9, 11 & 13(d) of the Prevention of Corruption Act. 2 Brief facts of the present case are as under:
2.1 That one Mr. J.K. Zala, Assistant Commissioner of Police, `B' Division Police Station, Surat, had filed an FIR on 13.12.2013, before `DCB' Police Station, Surat, against four accused persons including the applicant of Criminal Misc.
Application No.10299 of2014 for the aforesaid offenses. As per the said FIR, one accused, namely, Narayan Sai, who is facing the charges for an offence registered at CR No. I31of 2013 with Jehangirpura Police Station, for the offences punishable under Sections 376, 377, 354, 357, 342, 346, 143, 147, 148, 149, 506(2), 120(B) of the Indian Penal Code, came to be arrested. He was under police remand at DCB Police Station, Surat. Since the said accused was an influential person and has been facing serious charges like Sections 376, 377 etc, certain persons, who are closely Page 2 of 13 R/CR.MA/10299/2014 ORDER related to the said accused, were under surveillance by the Investigating Officer of that offence.
2.2 That one Mr. Jabba, PSI was interrogating the said Narayan Sai on 9.12.2013 during his police remand. The said accused informed him that the applicant of Cri. Misc. Application No.10299 of 2014, who is a Police SubInspector in DCB Crime Branch and is also part of the investigating team, came into the said lockup of DCB Police Station at Surat, on 9.12.2013 itself at about 5.30 in the morning, the present applicant had made arrangement for a meeting with other accused, who are close disciples of said Narayan Sai, to arrange an amount of Rs. 5 crores to distribute the same amongst the higher officers of Surat Police, so that the case lodged against Narayan Sai for the offences under Section 376, 377 etc. can be weakened.
2.3 That having received the said information, the complainant informed the higher officers and kept a watch on the present applicant and other persons who were in contact with the present applicant. Since various allegations were made against the present applicant and other accused, a complaint was recorded by Page 3 of 13 R/CR.MA/10299/2014 ORDER the Assistant Commissioner of Police, DCB Police Station, Surat. Mr. Jabba, PSI, also contacted other accused, who were going to arrange money, as stated. With the consent of higher officers, he had also made reverse trap about the amount towards bribe which was to be accepted. Mr. Jabba along with the complainant reached at the place, where the present applicant was standing near a car and an amount of Rs.1 crore was found from the car. It is further alleged in the FIR that one Naresh @ Rupabhai Bhoglamal Mankani, who is the applicant in Criminal Misc. Application No. 11590 of 2014, is the Administrator of an Ashram run by the original accused Narayan Sai, has arranged the said amount. 2.4 That the present applicant along with other accused persons came to be arrested by the Investigating Agency and after completion of the investigation, a chargesheet was filed before the competent court for the offenses stated hereinabove. After completion of investigation and submission of chargesheet, both the applicants approached the trial court for bail, which was turned down by learned Sessions Judge. Hence, the present applications. Pursuant to the notice issued by this Court, one Jayantilal Ambalal Patel, serving as ACP, `D'Division Police Station, Surat, Page 4 of 13 R/CR.MA/10299/2014 ORDER who was investigating the present FIR, has filed his affidavitin reply and opposed this application.
3 Mr. Yogesh Lakhani, learned Senior Counsel with Mr. Ashish M. Dagli, learned Advocate, appearing for the applicant - PSI, has vehemently submitted that the entire FIR is lodged on the basis of the statement made by the accused during his police custody who has stated that the present applicant along with other coaccused had arranged an amount of Rs.5 crores to distribute the same amongst the higher officers of Surat Police, so that the case lodged against Narayan Sai under Section 376, 377 etc. can be weakened. The said statement which was made by accused to Police Inspector Mr. Jabba and relying upon the said statement, the allegations have been made against the present applicant that he has participated in the present case.
3.1 Mr. Yogesh Lakhani, learned Senior Counsel, has submitted that the applicant was remanded for 14 days, however, there is no discovery or recovery of any amount from him. He would further submit that the offences under Sections 213, 214 and 217 of the IPC are bailable offences and for the offences Page 5 of 13 R/CR.MA/10299/2014 ORDER under Sections 7, 8, 9, 11 &13 (d) of the Prevention of Corruption Act, the maximum punishment is of seven years. He would further submit that even the complainant and Mr. Jabba were aware that accused have arranged an amount of Rs.5 crores towards bribe, however, none of them have undertaken any steps prescribed under the provisions of Prevention of Corruption Act by approaching the authority established `under the said Act. He would further submit that the applicants behind the bar since December, 2013, charge sheet has been filed and no further investigation is necessary. There is no question of tampering with the evidence. He would further submit that the present applicant, who is a Police Inspector, was also part of the investigating team, has never played any key role in the entire offence for making arrangement to get Rs.5 crores and to distribute the same to the higher officers of the Surat Police so as to weaken the case, which was under investigation. He would further submit that the witnesses are only from Police Department and they have stated that, though, he was restrained from entering to the lockup where Narayan Sai was kept and to make arrangement for meeting with other accused with regard to the payment of money to the police officer. He would further submit the witnesses, who are from the Page 6 of 13 R/CR.MA/10299/2014 ORDER Police Department, have stated that, though, the applicant was restrained from entering into the lockup and make arrangements for meeting with other accused with regard to the payment of money to the police officer. He would further submit that during the remand period of the applicant nothing was recovered or discovered nor any documents were found from him. He would further submit that the present applicant had allegedly facilitated one of the accused to meet the main accused Narayan Sai in the lockup which is not supported by sufficient and relevant evidence. 3.2 Mr. Lakhani, learned Senior Counsel, would further submit that the amount of Rs.1 crore was found from the car of other accused and not from the present applicant and, therefore, prima facie, there is no case against the applicant for the offence under Prevention of Corruption Act. Subsequent to above incident, further raids were carried out by the Investigating Agency and an amount of Rs.10 lacs have been found from different accused, which were alleged to have been collected to distribute amongst the higher police officers. Lastly, Mr. Yogesh Lakhani, learned Senior Counsel, would submit that the applicant has not acted in any manner prejudice to the investigation of a serious offence Page 7 of 13 R/CR.MA/10299/2014 ORDER which has already been registered, investigated and chargesheet has already been filed. He would, therefore, submit that the applicant was made a scapegoat as he has acted blindly on the instructions of higher officers. Therefore, Mr. Lakhani, learned Senior Counsel, would submit that the applicant be released on regular bail on any suitable conditions.
4 Mr. N.D. Nanavati,, learned Senior Counsel with Ms. Tejal A Vashi, learned Advocate, appearing for the applicant of Criminal Misc. Application No.11590 of 2014 has vehemently submitted that the entire FIR is lodged on the basis of the statement made by Police Inspector Mr. Jabba that he has participated in the present case. He would further submit that the applicant was the administrator of an ashram run by the main accused. It is alleged that a chit written in Sindhi language was found from the drawer of his table wherein it is written that arrangement of Rs. 1 crores is made, however, no details are mentioned. Except this no other material against the present applicant in the FIR. Mr. Nanavati, learned Senior Counsel would further submit that except this, no other material against the present applicant in the FIR. It is also submitted that the applicant Page 8 of 13 R/CR.MA/10299/2014 ORDER be released on regular bail as the charge sheet has been filed, no further investigation is necessary and the applicant is in custody since 13.12.2013.
5 On the other hand, learned APP Mr. Kodekar, has vehemently opposed the present application. He would submit that the allegations levelled against the present applicant is of cheating which is not expected from a police officer like the present applicant. He would further submit that the present applicant had facilitated one of the accused of the present offence to meet the main accused Narayan Sai in the lockup. He would further submit that an amount of Rs.1 crore was found from the car of the other accused near which he was standing. He would further submit that further raids were carried out by the Investigating Agency and a total of Rs. 8 to 10 lacs were found from different accused which were collected to distribute the same to the higher police officers. It is further submitted that the present applicant has made arrangements of Rs.1 crore which has been found at the time of raid carried out by the IO.Mr. Kodekar, learned APP, would, therefore, submit that considering the aforesaid facts and circumstances, at this stage, the applicant may not be released and Page 9 of 13 R/CR.MA/10299/2014 ORDER the present application may be dismissed.
6 I have heard the learned Advocates appearing on behalf of the respective parties and perused the investigation papers as well as the affidavitinreply filed by the IO. It is an undisputed fact that the FIR has been lodged by one J.K. Zhala, Deputy Police Commissioner, Surat, who had found certain papers from the accused, who was the PSI in DCB Police Station, Surat. It is also an admitted fact that nothing has been found from the applicant during his police remand for 14 days. It is also an admitted position that investigation is over, chargesheet is filed. The charges levelled against the present applicant are of under Sections 213, 214 and 217 of the IPC which are bailable offenses and for the offences under Section 7, 8, 9, 11 and 13(d) of the Prevention of Corruption Act, the maximum punishment is of seven years and the applicant is behind the bar since November, 2013. The only allegation against the applicant of Criminal Misc. Application No. 11590 of 2014 is that a chit was found from him written in Sindi language, wherein it has been mentioned that payment of Rs.1 crore has been arranged. It is not clear that for what purpose the said amount has been arranged.
Page 10 of 13
R/CR.MA/10299/2014 ORDER 7 Considering the overall facts and circumstances of the
present case as well as the fact that the investigation is over, charge sheet has been filed and the applicants are behind the bar since November, 2013 and December, 2013 respectively and also considering the role played by the applicants and also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation, as reported at [2012] 1SCC 40, I am of the opinion that the present application requires consideration. Hence, the present application are allowed and the applicant of each application is hereby ordered to be released on regular bail in connection with the offence being CR No. I37 of 2013 registered with DCB Police Station, Surat, on executing a personal bond of Rs. 25,000/ (Rupees twenty five thousand only) with one local surety of like amount to the satisfaction of the learned Sessions Court and subject tot he conditions that the applicants shall:
[a] not take undue advantage of their liberty or misuse the liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender their passports, if any, to the lower court within a week;Page 11 of 13
R/CR.MA/10299/2014 ORDER [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
(e) not enter into the District Surat for a period of first six months and shall provide address where they are going to stay for the initial period of six months and during this period mark their presence before the nearest police station between 9.00 a.m. and 4.00 p.m. Thereafter, after entering into Surat District, shall mark their presence before the concerned police station on any day in the first week of every month for a period of six months between 9.00 a.m. and 4.00 p.m. [f] furnish latest address of their residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
8. The Authorities shall release the applicants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bonds to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicants on bail. Rule is made absolute Page 12 of 13 R/CR.MA/10299/2014 ORDER to the aforesaid extent in both the applications. Direct service is permitted.
(A.J.DESAI, J.) pnnair Page 13 of 13