Gujarat High Court
Bhayabhai Gigabhai Sutreja vs State Of Gujarat on 4 December, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1470
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
R/CR.MA/15407/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15407 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
BHAYABHAI GIGABHAI SUTREJA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
LEARNED SENIOR ADVOCATE SHREE J. M. PANCHAL with MR. SURAJ
A SHUKLA(7185) for the Applicant(s) No. 1
MR. MANAN MEHTA, APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 04/12/2020
ORAL JUDGMENT
1. This Application is filed by the Applicant - Accused under Section 439 of the Code of Criminal Procedure for enlarging the applicant on Regular Bail in connection with FIR being I-C.R. No. 2 of 2020 registered with A.C.B. Police Station, Gandhinagar District
- Gandhinagar for the offences punishable under Sections 13(1) (B) and 13(2) of the Prevention of Corruption (Amendment) Act, 2018.
Page 1 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020R/CR.MA/15407/2020 JUDGMENT
2. Heard learned Senior Advocate Shree J. M. Panchal with learned advocate Mr. Suraj Shukla for the Applicant and learned APP Mr. Manan Mehta for the Respondent State through Video Conference.
Factual Matrix of the Case:
3. The brief facts is that the present FIR is lodged by one Mr. R. N. Patel, Police Inspector, A.C.B., Police Station, Gandhinagar, wherein in it is alleged that on 10.07.2020, the complainant received an information from his informant that the present applicant is travelling from Jamnagar to Gandhinagar in a bus bearing registration No. GJ-3-BW-811 and he is carrying one black colour briefcase wherein, he has kept some money which he has obtained out of illegal gratification being Regional Officer (Class-
1), GPCB, Jamnagar pursuant to which, the complainant along with other officers waited near Shahpur Circle for the said bus to caught the applicant red handed and when the said bus reached near the Shahpur Circle at 11:00 pm, the complainant along with other officers followed the bus and when the bus stopped near C- 6 Circle, the Applicant came down out of the said bus with a briefcase in his hand and when he was going to sit in a car which was waiting there for him. He was stopped by the complainant and upon checking the briefcase, the complainant found Rs. 4,91,813/- from it and Rs. 17,800/- from his pocket totalling to Rs. 5,09,613/-. It is further alleged that upon asking regarding the source of the said money he replied by selling groundnuts and upon asking in detail, he further informed that he is also an agriculturist and is owning almost 50 Vigha's of agriculture land where he is farming Crops and upon asking about the details of person who gave him the money he said someone gave him the said money at his office and he does not want to give any Page 2 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020 R/CR.MA/15407/2020 JUDGMENT answer, so the said FIR came to be lodged.
Submission of the Parties
4. Learned Senior Advocate Shree J. M. Panchal vehemently and fervently argued that in the present case chargesheet is filed. As per the allegations levelled in the FIR and other papers that the present applicant for the Applicant / Accused has submitted that in the present case on 10.07.2020, the complainant received an information from his informant that the present applicant is travelling from Jamnagar to Gandhinagar in a bus bearing registration No. GJ-3-BW-811 and he is carrying one black colour briefcase wherein, he has kept some money which he has obtained out of illegal gratification being Regional Officer (Class-1), GPCB, Jamnagar pursuant to which, the complainant along with other officers waited near Shahpur Circle for the said bus to caught the applicant red handed and when the said bus reached near the Shahpur Circle at 11:00 pm, the complainant along with other officers followed the bus and when the bus stopped near C-6 Circle, the Applicant came down out of the said bus with a briefcase in his hand and when he was going to sit in a car which was waiting there for him. He was stopped by the complainant and upon checking the briefcase, the complainant found Rs. 4,91,813/- from it and Rs. 17,800/- from his pocket totalling to Rs. 5,09,613/-. Further second allegation is that the gold articles are also seized and third allegations is that while opening the Bank Locker of SBI the Case of Rs. 55 lacs was also found this is the allegation made at Page 99 and for which separate allegations is given that it was 'death Assets'. Further as per the statement of witnesses applicant has more than 25 properties that is to say the prosecution come forward with 25 properties whereas the present applicant has more than 35 Page 3 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020 R/CR.MA/15407/2020 JUDGMENT properties. Further, Annexure at Page 166 the property belongs to Bhayabhai Gigabhai is in the year ie. 1 st April 2018 and 31st March 2019 of Rs. 1,61,73,810.32/-. Further as per page No. 188, cash on hand Rs. 14,65,870.00 in the name of Shantiben Bhayabhai, who is the wife of the present applicant, which is transpired from the Balance Sheet from 1-April-2018 to 31-March- 2019. Upon such premises, at last learned Senior Advocate Shree Panchal for the applicant has vehemently and fervently submitted that there is no disproportionate income to the known source of income, further charges are baseless and charge sheet is falsely filed. The applicant having no antecedent. He further submitted that the applicant has family roots in the society and therefore, he is not likely to flee away from justice. That he will abide by whatever conditions imposed by the Hon'ble Court. He has therefore, prayed that discretion may kindly be exercised and enlarge the applicant on regular bail.
5. Per contra, learned APP Mr. Manan Mehta for the State has vehemently opposed the bail application and the argued that in the present case, Rs. 55 lacs cash and Gold were found from the Bank Locker of the applicant. Charge Sheet is also filed. He further submitted that further investigation under Section 173(8) is pending, therefore, prima-facie case is made out against the present applicant, therefore, discretion may not be exercised in favour of the applicant.
Merits of the Case:
6. This court has considered the following aspects:
(a) That in the present case it is an admitted fact that the Applicant accused has come for this Application after the charged sheet is filed.Page 4 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020
R/CR.MA/15407/2020 JUDGMENT (b) Further 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.
(c) That the learned Advocate for the Applicant has submitted that the Applicant Accused is not likely to flee away.
(d) That the Applicant Accused is in custody since 13.07.2020.
(e) 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, wherein it is held that bail is a rule and jail is an exception and there should not be pre-trial punishment.
6.1 Pursuant to the affidavit filed by the Police Inspector, of A.C.B. Police Station, Gandhinagar, it transpires that the charge sheet is filed on the basis of disproportionate property to the known source of income of the applicant and mainly based on Rs. 5 lacs cash were found, during the search Rs. 55 lacs were found from the Bank Locker. This Court has gone through the defence as submitted by the learned Senior Advocate Shree Panchal for the applicant, wherein this Court prima-facie observed as under:
Bhayabhai Gigabhai Sutreja -
Balance Sheet 1- April 2018 to 31 March 2019 Liability Amount Assets Amount Capital Account 90,09,995.32 Fixed Assets 63,11,597.00 Agriculture income Flat Purchase 600000.00 36,68,750 Bank Charges (-) GIDC Plot 799.46 7,89,297 Page 5 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020 R/CR.MA/15407/2020 JUDGMENT Bank Interest SB Office purchase 16,346.00 18,53,550 Bhayabhai Cap Act 70,10,960.78 Electricity Exp. (-) Investments 6,51,000.00 22,230.00 Insu Premium (-) FDR with Dena 12.00 Bank 4,01,000 Interest on FDR FDR with IOB 1,87,216.00 2,50,000 Reimburse from Gpcb Current Assets 92,11,213.32 24,553.00 Rent Income House Loans & Advances Porbandar (asset) 72,000.00 83,35,788 Salary Deduction (-) Cash-in-hand 4,04,285.00 3700 Salary Income Bank Accounts 15,31,252.00 8,71,725.32 TDS (-) 5006.00 71,63,815.00 Loans (Liability) Secured Loans 45,05,815.00 Unsecured loan 26,50,000.00 Rent deposit 8,000 Current liabilities Suspense Ac Profit and Loss A/c Opening Balance Current Period Total 1,61,73,810.32 Total 1,61,73,810.32
6.2 From the above balance sheet it suggests that prima facie the applicant was having accounts of Rs. 1,61,73,810.32 in between 1-April-2018 to 31 March 2019. Secondly the wife of the accused possesses following Balance Sheet from 1- April 2018 to 31 March 2019.
Page 6 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020R/CR.MA/15407/2020 JUDGMENT Shantiben Bhayabhai Sutreja -
Balance Sheet 1- April 2018 to 31 March 2019 Liability Amount Assets Amount Capital Account 2,73,19,696.16 Fixed Asset 1,66,79,903 Agriculture income Flat Purchase 11,68,990.00 38,33750 Bank Charges (-) Shop Purchase 1893.63 29,31153 Bank Interest SB Shop Purchase 15,888.90 30,94900 Drawing Ac (-) Shop Purchase 2,00,012.00 7,34300 Gift from daughter Shop Purchase 13,21,000.00 7,34600 Gift from Shop Radhe 21,00,000.00 15,73800 Gift received Shop Sanvtra 60,00,000.00 12,59000 Income Tax Paid (-) Shop Shivalik 3,71,170.00 18,88750 Insurance Premium 100.00 Interest on FDR Investment 2,33,678.
LIC A/c (-) Current Asset 1,70,27,555.16
8801.00
Loan Process fees (-) Deposit asset
2880.00 12799000
Locker rent (-) Loand and Adv.
3656.50 1680820
Rent Income Zori Cash in hand
1,98,667 2279970
SBI Life Insu (-) Bank Ac
2,50,000 267765
ShantibenCap 62,27,762.00
1,71,19,985.38
Loans (Liability)
Secured Loans 17,29,762.00
Unsecured loan
44,98,000.00
Current liabilities
Suspense Ac
Profit and Loss A/c 1,60,000.00
Page 7 of 16
Downloaded on : Sun Dec 06 01:22:20 IST 2020
R/CR.MA/15407/2020 JUDGMENT
Opening Balance 6,00,000
Current Period 1,60,000
Less Transferred 6,00,000
Total 3,37,07,458.16 Total 3,37,07,458.16
Therefore, wife of the applicant having balance of Rs.
3,37,07,458.16.
7. It is pertinent to note that offence is registered in the year 2020, therefore, both balance sheets are prima facie, prior to registration of the offence and therefore, at this juncture, while travelling the bail business, the prima facie the prosecution is failed to convince this Court regarding disproportion of his pecuniary resources or property to his known sources of income. The Hon'ble Supreme Court in case of Krishnanand Vs. The State of Madhya Pradesh, on 17, December, 1976, para 33, reads thus:
"33. It will, therefore, be seen that as against an aggregate surplus income of Rupees 44,383.59 which was available to the appellant during the period in question, the appellant possessed total assets worth Rupees 55,732.25. The assets possessed by the appellant were thus in excess of the surplus income available to him. but since the excess is comparatively small - it is less than ten per cent of the total income of Rs. 1,27,715.43 - we do not think it would be right to hold that the assets found in the possession of the appellant were disproportionate to his known sources of income so as to justify the raising of the presumption under Sub-section (3) of Section 5. We are of the view that, on the facts of the present case the High Court as well as the Special Judge were in error in raising the presumption contained in Sub-section (3) of Section 5 and convicting the appellant on the basis of such presumption."
8. Further, pursuant to the police papers, there is nothing on record that applicant has made any illegal demand from particular person or from institution or made any illegal Page 8 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020 R/CR.MA/15407/2020 JUDGMENT acceptance, upon such premises merely on the basis of having Rs. 55 lacs in the Bank Locker coupled with gold articles, it is far from denying the bail application to the applicant.
8.1 As per the settled principle of law, investigating agency is required to prepare following types of affidavit coupled with information while opposing the application which reads as under:
"(A) Necessary material to be placed on record for opposing bail application for offenses of Trap Cases as well as disproportionate asset case in the affidavit:
1. Misc. Cri. Appln. No.
2. C. R. No of Police Station.
3.Name of the informant, whether an eye witness?
4. Date, time & place of incident.
5. Date, time & place of filing FIR.
6.Reasons explained, if FIR is delayed.
7. Offence alleged.
8.Name (s) of the accused.
9.Whether accused is public servant, if yes, quote designation.
10.Nature and gravity of offence.
11.Motive for the alleged offence.
12.Whether corroborated by electronic / technical evidence?
13.Whether corroborated by forensic evidence?
14.Recovery of things / documents at the instance of accused.
15.Role and conduct of the accused.
16.Whether any direct allegation against co-accused or abettor?
17.Whether any private party involved?Page 9 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020
R/CR.MA/15407/2020 JUDGMENT
18.Whether any family member is involved?
19.Antecedents of the accused and co-accused.
20.Possibility of the applicant to flee from justice.
21.Which stage of investigation is in progress.
22.Likelihood of accused getting involved in the similar offence again.
23.Reasonable apprehension of tampering with witnesses and documents.
24.Apprehension of influencing the investigation.
25.Need of custodial interrogation.
26.Concealment of earlier petition dismissed or withdrawn.
27. Whether any extra-judicial confession or statement made?
28. Whether charge-sheet filed ?
29. Any other facts.
(B) Additional Material to be placed on record for opposing bail application for offenses of Trap Cases in the affidavit:
1.Presence of witnesses, if any, to corroborate the complainant / eye witness
2.Initial demand is how made and quantum of such demand.
3.Immediate demand, when and how made?
4.While raid, when demand is made, whether panch-witness was present with the complainant?
5.Narration of acceptance in whose evidence?
6.Recovery of tainted currency by whose evidence and amount?
7.Whether narration of demand and acceptance by panch no.1 to the I.O. is recorded in the panchnama?
8.Discovery of tainted currency notes used in the Page 10 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020 R/CR.MA/15407/2020 JUDGMENT commission of offence.
(a)Whether phenolphthalein power found on the currency notes?
(b)Recovery or discovery of phenolphthalein powder found on the hands of the accused?
(c)Recovery or discovery of phenolphthalein powder found on the clothes of the accused?
(C) Additional Material to be placed on record for opposing bail application for the offences of disproportionate assets case in the affidavit:
1.Nature and extent of pecuniary resources of property found in possession of the accused.
2.Known source of income of the accused.
3.Check period.
4.Check amount.
5.Assets before the check period.
6.Assets at the end of the check period.
7.Income / receipt during the check period.
8.Expenditure during the check period.
9.Unexplained asset may be calculated as follows:
(a)Total asset minus total income.
(b)Percentage = Diproportionate Assets x 100/Income = Net DA... %
10.Whether any other agency informed? (Income Tax Department, Enforcement Directorate, etc.)
11. Whether any other agency involved? (Income Tax Department, Enforcement Directorate, etc.)
12.Data Visualization in Graphical Representation of Money Transactions and assets acquisition to prove nexus theory Page 11 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020 R/CR.MA/15407/2020 JUDGMENT of the accused, if any."
8.2 As per the latest amendment in the Prevention of Corruption Act, 1988 (Amended), with effect from 26.07.2018 Section 17(A) which reads thus:
"Sec, 17A.Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.--(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval--
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:Page 12 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020
R/CR.MA/15407/2020 JUDGMENT Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month."
9. As per the the plain reading of Section 17(A) latest amended, the preliminary inquiry or investigation is sine-qua- none, further without previous approval, the Investigating Officer cannot proceed with the matter. Learned Senior Advocate Shree Panchal for the applicant has placed reliance upon the judgment passed by the High Court of Rajasthan at Jodhpur in S.B. Criminal Misc. (Pet) No. 159/2018 in case of Kailash Chandra Agrwal Vs. State of Rajasthan, wherein FIR was lodged on the basis of private complaint and no approval of the competent Government was taken before initiating the inquiry and registering the formal FIR. Manifestly, the newly inserted provision prohibits conducting of enquiry/inquiry or investigation into any offence under this Act alleged to have been committed by a public servant where the act alleged is relatable to any recommendation made or decision taken by such a public servant in discharge of official functions or duties. Manifestly, the questioned decisions in furtherance whereof, the land subject matter of dispute was sold to and transferred in the name of the applicants Kailash Chandra Agarwal and Nand Bihari, were issued by the respective public servants concerned i.e. the Land Record Inspector Chhotaram, the Patwari Ramratan and the Tehsildar Tejmal Choudhary in discharge of their official duties. Therefore, before initiating any inquiry against the public servants under the provisions of the P.C. Act, prior approval of the Government was a sine-qua-non and the FIR could not have been registered without such approval. As the public servants Page 13 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020 R/CR.MA/15407/2020 JUDGMENT cannot be prosecuted in this mater, registration of the FIR by the Anti Corruption Bureau against the private individuals i.e. the applicants Kailash Chandra Agarwal and Nand Bihari is also totally illegal and amounts to a gross abuse of process of law."
9.1 Learned Senior advocate Shree Panchal for the applicant has also placed reliance on judgment in case of Joginder Kumar Vs. State of U.P. reported in 1994 SCC (Cri) 1172, wherein powers of police to arrest accused is discussed. This Court has discussed this issue at sanctioned from competent authority.
10. Therefore, as per the settled principle of law, prima facie prosecution is failed to convince this Court that applicant belongs to disproportion income which is more than 10% to the known source of income since the applicant is able to convince this Court that he possesses more than 25 property even prior to registration of offence not only that but this Court has also made querry to the learned APP whether any vigilance inquiry is pending or concluded regarding the corrupt practices on the basis of application. Further, it is nobody's case about any raid by Income Tax or by DRI or by any Authority for disproportion income of the applicant during his service, during the course of argument learned APP fairly submitted that as per the instruction except report of IO & Charge sheet there is no instructions to that effect. and therefore upon all such premises, perusing the record in this Case and taking into consideration the totality of prima facie facts of the case nature of allegation gravity of accusation and punishment prescribed for offence, availability of accused at the time of trial, etc., having no antecedent. This Court is inclined to exercise the discretion under Section 439 of the Cr. PC. It is also pertinent to note that the Investigating Officer has seized each and every property of the applicant, hence there is no Page 14 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020 R/CR.MA/15407/2020 JUDGMENT question of tampering and hampering with the witness neither with the question of non availability of accused person who is Class- I officer at the time of offence. Therefore, this Court is inclined to exercise discretion in favour of the applicant. The Applicant Accused- BHAYABHAI GIGABHAI SUTREJA is ordered to be released on regular bail in connection with the aforesaid FIR on executing a personal bond of Rs. 50,000/- 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 his residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not change his residence without prior permission of the trial Court.
(d) provide his 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 Page 15 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020 R/CR.MA/15407/2020 JUDGMENT
(g) surrender passport, if any, to the Trial Court within a week. If he does not possess passport, he shall file an Affidavit to that effect.
(h) shall maintain all the rules and regulations framed by the Municipality regarding contemporary status of corona virus/Covid-19, State Government or by any competent authority, including social distancing.
11. 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.
12. 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 he is not required in connection with any other offence for the time being.
13. Before parting with, it is made clear that the observations made in this order is for bail purpose only and neither trial Court at trail nor any competent authority shall be influenced by the observations made in this order.
1 4 . Rule is made absolute accordingly. Direct service thorough e- mail/fax or any other electronic mode is permitted. Registry shall communicate this order by fax / e-mail to the concerned Court / authority.
(DR. ASHOKKUMAR C. JOSHI,J) prk Page 16 of 16 Downloaded on : Sun Dec 06 01:22:20 IST 2020