Gujarat High Court
Sadikhusen @ Iliyas Ibhrahimbhai Malek vs State Of Gujarat on 4 August, 2020
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
R/CR.MA/9257/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9257 of 2020
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SADIKHUSEN @ ILIYAS IBHRAHIMBHAI MALEK
Versus
STATE OF GUJARAT
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Appearance:
MS JEMINI S PATEL(10140) for the Applicant(s) No. 1
SANJIVKUMAR T PATEL(8914) for the Applicant(s) No. 1
MS NISHA THAKOR, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 04/08/2020
ORAL ORDER
1. Rule. Ms.Nisha Thakor, learned Additional Public Prosecutor waives service of Rule on behalf of the respondent State.
2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with the FIR being CR No.11216008200112 of 2020 registered with Gandhinagar Sector-7 Police Station, District Gandhinagar for the offence punishable under Sections 406, 420, 409, 465, 467 and 114 of the Indian Penal Code.
3. Heard Ms. Jemini S. Patel, learned advocate for the applicant and Ms. Nisha Thakor, learned Additional Public Prosecutor for the respondent State, through video conference.
4. Ms.Patel, learned advocate for the applicant submitted that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions. It is submitted that the present applicant has been arrested on 20.3.2020 and is in jail since then. Apropos the investigation carried out by the Investigating Officer, Page 1 of 5 Downloaded on : Tue Aug 04 23:21:58 IST 2020 R/CR.MA/9257/2020 ORDER the charge-sheet came to be filed on 27.5.2020. The First Information Report has been lodged after a period of one year alleging the offence under Section 409 of Indian Penal Code, however, the same is not applicable. It is submitted that the present applicant was merely an agent and out of 20 vehicles, so far as 18 vehicles are concerned, they were registered by one Mr. Chirag Patel and has been named by all the victims. It is submitted that Mr. Chirag Patel has initiated proceeding under provision of Section 482 before this Court and this Court has ordered no coercive action to be taken against him. It is submitted that so far as the applicant is concerned, no discovery or recovery of any data, money or material, has been made as a result of such transaction. It is submitted that so far as accused No.1 is concerned, he has been released on regular bail by this Court vide order dated 24.7.2020 passed in Criminal Misc. Application No.8363 of 2020. It is submitted that the role attributed to the applicant is exactly identical to the role attributed to Mr. Mehul Raval, accused No.1. Thus, on the ground of parity, as well, it is urged that this Court may exercise discretion and release the applicant on regular bail.
5. On the other hand, the learned Additional Public Prosecutor appearing for the respondent State has opposed this application looking to the nature and gravity of the offence. The offence alleged is under Section 406 and other provisions under the Information and Technology Act. It is submitted that a bare perusal of the contents of the First Information Report suggests that pursuant to the audit inquiry, it was found that there was a tax evasion for an amount of Rs.56,25,594/- in respect of 20 vehicles by tampering with the software of the RTO. It is submitted that though registration has been made, no amount of tax in respect of 20 vehicles was deposited. It is only owing to the inquiry, it was traced that out of 20 vehicles, 5-6 vehicles were registered by the dealer without giving temporary registration certificate in collusion with Page 2 of 5 Downloaded on : Tue Aug 04 23:21:58 IST 2020 R/CR.MA/9257/2020 ORDER Mr. Chirag Patel. It is submitted that accused No.1 was working as Technical Programmer with the RTO, Gandhinagar and misused the user names and passwords of the employees and received an OTP on his phone. It is submitted that Mr. Chirag Patel in connivance with the officer, i.e. Mr.Mehul Raval, accused No.1 as well as the applicant has committed the said offence alleged in the First Information Report.
6. Learned advocates appearing on behalf of the respective parties do not press for further reasoned order.
7. Having heard the learned advocates for the parties and perusing the material available on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
8. The coordinate bench of this Court, vide order dated 24.7.2020 passed in Criminal Misc. Application No.8363 of 2020, has observed thus:
"7. Having heard the learned advocates for the parties at length and perusing the documents on record, it appears that the papers of charge-sheet contained only two tax receipts allegedly forged out of 20 tax receipts in respect of 20 vehicles in question. It further appears from the affidavit of the I.O., and the statements of the witnesses recorded by the I.O., that the involvement of the present applicant is found in respect of one vehicle, inasmuch as he appears to have received the OTP during the course of making data entries in respect of the said vehicle, however, there is hardly any evidence collected by the I.O. to show as to how by receiving such OTP, the vehicle was registered and amount of tax was misappropriated. As such from the affidavit of the I.O., it transpires that there were many other officers in the hierarchy up to Assistant Regional Transport Officer in the RTO, responsible for verification of the entries which were made in the system existing prior to 01.09.2018 and after the said date, however, no satisfactory explanation has been offered by the Page 3 of 5 Downloaded on : Tue Aug 04 23:21:58 IST 2020 R/CR.MA/9257/2020 ORDER I.O. in his affidavit, as to why the alleged entries were not verified more particularly as regards payment of tax before the registration of the said twenty vehicles."
9. This Court has considered the aspects, viz. (a) the applicant is in jail since 20.3.2020; (b) investigation is over and charge-sheet is filed;
(c) the co-accused with similar role has been enlarged on regular bail by this Court vide order dated 24.7.2020 passed in Criminal Misc. Application No.8363 of 2020; (d) no distinguishing feature has been pointed out by learned Additional Public Prosecutor for not exercising discretion on the ground of parity. In view of the submissions canvassed by learned advocate for the applicant and in view of the facts and circumstances of the present case, I am inclined to consider the case of the applicant. This Court has also taken into consideration the law enunciated by the Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation, reported in (2012) 1 SCC 40.
10. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being CR No.11216008200112 of 2020 registered with Gandhinagar Sector-7 Police Station, District Gandhinagar, on executing a personal bond of Rs.50,000/- (Rupees Fifty Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that the applicant shall -
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week;
(d) mark presence before the concerned police station between 1st to 10th day of every English calendar month Page 4 of 5 Downloaded on : Tue Aug 04 23:21:58 IST 2020 R/CR.MA/9257/2020 ORDER between 11.00 a.m. and 2.00 p.m.;
(e) not leave Gujarat without prior permission of the concerned trial court;
(f) furnish the present address of 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 the concerned trial Court;
11. The authorities shall adhere to its own circular regarding COVID- 19 and thereafter release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the learned Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the 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.
12. Needless to say, at the trial, the trial Court shall not be influenced by the prima facie observations made by this Court in the present order.
13. Rule is made absolute to the aforesaid extent. Registry to communicate this order to the concerned court / jail authority through fax or e-mail, forthwith.
(SANGEETA K. VISHEN,J) Bharat/ALI ISTAYAK Page 5 of 5 Downloaded on : Tue Aug 04 23:21:58 IST 2020