Gujarat High Court
Yashpaldan Prakashdan Gadhvi vs State Of Gujarat on 7 September, 2020
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
R/CR.MA/10991/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10991 of 2020
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YASHPALDAN PRAKASHDAN GADHVI
Versus
STATE OF GUJARAT
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Appearance:
MR ND NANAVATI, SR. ADVOCATE WITH SHIVANGI D VYAS(10117) for the
Applicant(s) No. 1
MS. MOXA THAKKAR, APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
Date : 07/09/2020
ORAL ORDER
1. The present application has been filed by the applicant - original accused No.1 seeking regular bail under Section 439 of Cr.P.C., in connection with the FIR being IC.R. No.2/2020 registered at Navsari ACB Police Station, Navsari, for the offences punishable under Section 7(a), and 12 of the Prevention of Corruption Act, after the submission of chargesheet, as the earlier application filed by the applicant was withdrawn with liberty to file afresh after the submission of chargesheet.
2. Heard the learned Sr. Advocate Mr.Nanavati appearing with Ms.Shivangi D. Vyas For the applicant and the learned APP Ms.Thakkar for the respondent State.
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R/CR.MA/10991/2020 ORDER
3. It appears that on the complaint having been filed by the complainant Jagdamba Prasad Mishra, a trap was laid against the present applicant and the other coaccused in connection with the alleged demand of bribe made by the applicant and others for the release of the truck of the complainant, seized for the alleged illegal use of the said truck for the mining purpose and the present applicant along with other accused were allegedly found having demanded and accepted the illegal gratification of Rs.90,000/ from the complainant in presence of the panch witnesses and the Traplaying Officer.
4. Learned Sr. Advocate Mr.Nanavati for the applicant submitted that now the investigation is already completed and the chargesheet has already been filed against the applicant and other accused, and therefore, there is no possibility of the applicant hampering the investigation or tampering with any evidence. He submitted that the coaccused Shailesh Rabari, Circle Inspector, who was found to have accepted the amount of bribe has already been enlarged on bail by this Court vide the order dated Page 2 of 10 Downloaded on : Wed Sep 09 22:00:33 IST 2020 R/CR.MA/10991/2020 ORDER 26.6.2020 in Criminal Misc. Application No.8326 of 2020, and therefoe, the present applicant, who was the Mamlatdar and against whom similar allegations have been made, should also be released on bail on the ground of parity. Placing heavy reliance on the decision of the Supreme Court in case of Sanjay Chandra Vs. CBI, Reported in (2012) 1 SCC 40, Mr.Nanavati submitted that considering the nature of punishment prescribed under the Prevention of Corruption Act and considering the fact that the application is not likely to abscond or jump the bail, the present applicant be granted bail, more particularly when the applicant is in jail since more than three months.
5. However, the learned APP Ms.Thakkar for the respondent State, relying upon the papers of charge sheet, more particularly the transcript of the conversation recorded during the course of trap submitted that the prima facie involvement of the applicant is well established and there is strong possibility of the Court punishing the applicant for the alleged offences. Mr.Thakkar submitted that the Page 3 of 10 Downloaded on : Wed Sep 09 22:00:33 IST 2020 R/CR.MA/10991/2020 ORDER applicant being the Mamlatdar was the main culprit as the other accused were his subordinates and they had acted as per his instructions. She also submitted that the coaccused Deputy Mamlatdar, Sanjay Desai has not been released on bail so far.
6. Having regard to the submissions made by the learned Advocates for the parties and to the documents on record, more particularly the papers of chargesheet and the panchnama, it appears that a trap in connection with the alleged demand for illegal gratification from the complainant in respect of the release of his truck was laid by the Police Inspector B. J. Sarvaiya in presence of the panch witnesses, and during the trap proceedings the present applicant - accused no.1, who was the Mamlatdar at the relevant time was found present in his office. It further appears that when the complainant entered the office of the applicant and told the applicant that he had brought "that" (Saheb pelu lavel che), the applicant told the complainant that he should meet the Circle Inspector and inform him after that was done (Circle ne malilo, pati jai Page 4 of 10 Downloaded on : Wed Sep 09 22:00:33 IST 2020 R/CR.MA/10991/2020 ORDER to mane janavata jaijo). Thereafter the complainant had gone to the cabin of the Circle Inspector Shailesh Rabari, where he along with the Dy. Mamlatdar Sanjay Desai was present. At that time, Shailesh Rabari asked the complainant to hand over the amount to Sanjay Desai. The said Sanjay Desai accepted the currency notes of Rs.90,000/ and kept the same in the backside pocket of his pants. It appears that thereafter Sanjay Desai had asked his Clerk Kapilbhai to keep the envelope containing the said amount in the car and at that time the trap was laid. It further appears that the entire conversation between the complainant and the applicant - accused No.1 as also with the other accused was recorded, and the transcripts of the same matched the proceedings of panchnama drawn during the course of trap. Thus, from the papers of charge sheet, a prima facie involvement of the applicant is clearly established.
7. Though it was vehemently submitted by Mr.Nanavati that the Circle Inspector, the co accused Shailesh Rabari has been granted bail by this Page 5 of 10 Downloaded on : Wed Sep 09 22:00:33 IST 2020 R/CR.MA/10991/2020 ORDER Court , and therefore, the applicant who is also allegedly similarly situated be granted bail on the ground of parity, the Court is not inclined to accept the said submission. Apart from the settled legal position that parity is not based on any legal principle, the role of the applicant could not be equated with the role of the said Circle Inspector. As transpiring from the panchnama and also from the transcript of the conversations recorded during the course of the trap, when the complainant told the applicant that he had brought "that" (i.e. money), the applicant had asked the complainant to meet the Circle Inspector and inform him after the work was over i.e. after the illegal gratification was given to the Circle Inspector. The said Circle Inspector asked the complainant to hand over the money to the coaccused Shanjay Desai, Deputy Mamlatdar. The said coaccused has not been granted bail so far.
8. Now, it cannot be gainsaid that the corruption has become a social menace and is very much rampant nowadays. It is like a termite or a poisonous snake which has penetrated deeply into our systems. Page 6 of 10 Downloaded on : Wed Sep 09 22:00:33 IST 2020
R/CR.MA/10991/2020 ORDER It is often quoted that the Public servants are like fish in the water, none can say when and how a fish drank the water. The Constitution Bench of the Supreme Court in case of Dr.Subrahmanian Swamy Vs. Director, CBI and Another , reported, reported in (2014) 8 SCC 682 (decided on 6.5.2014) taking very serious note on the level of corruption prevailing in the country and the objects of enacting the Prevention of Corruption Act, had observed as under: "71. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.
72. xxx
73. The PC Act, 1988 is a special statute and its preamble shows that it has been enacted to consolidate and amend the law relating to the prevention of corruption and for the matters connected therewith. It is intended to make the corruption laws more effective by widening their coverage and by strengthening the provisions. It came to be enacted because Prevention of Corruption Act, 1947 as amended from time to time was inadequate to deal with the offences of corruption effectively. The new Act now seeks to provide for speedy trial of offences punishable under the Act in public interest as the Page 7 of 10 Downloaded on : Wed Sep 09 22:00:33 IST 2020 R/CR.MA/10991/2020 ORDER legislature had become aware of corruption amongst the public servants.
74. Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the moral fabric of the society but also harmful to the national economy and national interest, as the persons occupying high posts in the Government by misusing their power due to corruption can cause considerable damage to the national economy, national interest and image of the country[75].
75. xxx
76. xxx
77. This Court in Shobha Suresh Jumani[76], took judicial notice of the fact that because of the mad race of becoming rich and acquiring properties overnight or because of the ostentatious or vulgar show of wealth by a few or because of change of environment in the society by adoption of materialistic approach, there is cancerous growth of corruption which has affected the moral standards of the people and all forms of governmental administration.
78. The PC Act, 1988 enacts the legislative policy to meet corruption cases with a very strong hand. All public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences.[77]
79. The twoJudge Bench of this Court observed in Sanjiv Kumar[78] that the case before them had brought to the fore the rampant corruption in the corridors of politics and bureaucracy.
80. In a comparatively recent decision of this Court in Subramanian Swamy9, this court was concerned with the question whether a complaint can be filed by a citizen for prosecuting the public servant for an offence under the PC Act, 1988 and whether the authority competent to sanction prosecution of a public servant for Page 8 of 10 Downloaded on : Wed Sep 09 22:00:33 IST 2020 R/CR.MA/10991/2020 ORDER offences under that Act is required to take appropriate decision within the time specified in Clause (I)(15) of the directions contained in paragraph 58 of the judgment of this Court in Vineet Narain1 and the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission. In the supplementing judgment, A.K. Ganguly, J. while concurring with the main judgment delivered by G.S. Singhvi, J. observed:
"Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular vision.
Therefore, the duty of the court is that any anticorruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption.........." Dealing with Section 19 of the PC Act, 1988 which bars a court from taking cognizance of the cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the PC Act, 1988, unless the Central or the State Government, as the case may be, has accorded sanction observed that this provision virtually imposes fetters on private citizens and also on prosecutors from approaching court against corrupt public servants. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution but the protection against malicious prosecution which is extended in public interest cannot become a shield to protect corrupt officials.
81. In Balakrishna Dattatrya Kumbhar11, this Court observed that corruption was not only a Page 9 of 10 Downloaded on : Wed Sep 09 22:00:33 IST 2020 R/CR.MA/10991/2020 ORDER punishable offence but also, "undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes".
82. In R.A. Mehta10, the twoJudge Bench of this Court made the following observations about corruption in the society:
"Corruption in a society is required to be detected and eradicated at the earliest as it shakes "the socioeconomicpolitical system in an otherwise healthy, wealthy, effective and vibrating society". Liberty cannot last long unless the State is able to eradicate corruption from public life. Corruption is a bigger threat than external threat to the civil society as it corrodes the vitals of our polity and society. Corruption is instrumental in not proper implementation and enforcement of policies adopted by the Government. Thus, it is not merely a fringe issue but a subjectmatter of grave concern and requires to be decisively dealt with."
9. In view of the above stated legal position and considering the gravity of the offence punishable under the PC Act enacted to meet with the menace of corruption with a very strong hand, granting bail to the present applicant, who is prima facie involved in the alleged offences under the P. C. Act, it is not desirable to release the applicant on bail. In that view of the matter the present application is dismissed.
(BELA M. TRIVEDI, J) MEHUL B. TUVAR / VINOD Page 10 of 10 Downloaded on : Wed Sep 09 22:00:33 IST 2020