Gujarat High Court
Atul Vinodkumar Gorsawala vs State Of Gujarat on 7 July, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1977
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/8148/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8148 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
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 ?
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ATUL VINODKUMAR GORSAWALA
Versus
STATE OF GUJARAT
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Appearance:
MR. S.V. RAJU SENIOR ADVOCATE WITH MR.NANDISH H
THACKAR(7008) for the Applicant(s) No. 1
MR ASHISH M DAGLI(2203) for the original victim
MR. MITESH AMIN, PP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 07/07/2020
CAV JUDGMENT
This application is filed by the applicant under Section 439 of Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for short) for enlarging him on regular bail in connection with the FIR being C.R. No. I246 of 2019 registered with Sarthana Police Station, Dist: Surat for the offence punishable under Section 304, 308, 465, 467,468, 471 Page 1 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT and 114 of the Indian Penal Code.
Heard learned Sr. Advocate Mr. S.V. Raju assisted by learned advocate Mr. Nandish Thackar appearing for the applicant, learned Public Prosecutor Mr. Mitesh Amin for the respondentState and learned advocate Mr. Ashish Dagli for the original victim.
The aforesaid FIR is filed by one Mr. Ayubbhai Adambhai Vadgama, Police Sub Inspector, Sarthana Police Station, Surat. It is stated that when the complainant was on duty, he got the information from his superior officer to reach at the Shopping Center Takshasila Arcade, near Sarthana Jakatnaka where the fire took place. The complainant, therefore, reached at the place of incident with his police personnel and he noticed that one firefighter was also present at the place of incident. It is further stated that whole building of Takshasila Arcade caught into fire and the boys and girls who were on the fourth floor of the said building started screaming and after that some of the boys and girls started jumping from the building. At that time, complainant and other police personnel tried to stop them by Page 2 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT shouting. It is further stated that the crowd gathered at the place of incident tried to save the boys and girls who jumped from the building. On the basis of the information given by the Surat City Police Controlroom various firefighter vehicles reached at the place of incident. Thereafter, they tried to control the situation. It is further stated that after the control of fire by the firefighters, the complainant inquired at the place of incident. During the inquiry, it was revealed that illegal structure has been carried out by accused Harsulbhai Vakariya and Jignesh Savjibhai Pagdal. The said premises was given to one Mr. Bhargav Butani on rent. It is alleged that Bhargav Butani was running the classes. Because of the illegal structure on fourth floor of terrace of the building and since no fire safety equipments were installed and in absence of fire exit, the incident has taken place.
Learned Senior Advocate for the applicant has submitted that the present applicant was arrested in connection with the impugned FIR on 2nd October 2019 and since last 9 months, he is in judicial custody, as initially offence was registered under Page 3 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT Sections 304, 308 and 114 of the Indian Penal Code. The applicant was working with Surat Municipality since last 34 years and is not connected with the crime in question. That, for the first time, he was allocated the portfolio of ascertaining the "Impact Fee" in the Town Planning Scheme No. 22, Varachha Zone on 04.04.2013, but prior thereto, applications along with the relevant documents were collected and scrutinized for regularization of unauthorized construction made thereon. That, the applicant was transferred to another department on 1st April 2015 ie., much prior to the grant of certificate of regularization, and therefore, he had nothing to do with regard to process of grant of COR, much less anything to do with the present incident. That, name of the present applicant was not shown in the FIR as an accused. That, he was Junior Engineer and his role was very limited to verification and measurement of illegal structure, which were to be legalized under the Gujarat Regulation of Unauthorized Development Act, 2011 (herein after referred to as "GRUDA"). That, as a part of his duty, applicant had visited the site on 16th May 2013 and had Page 4 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT verified the application made for relevant building being "Takshshila Arcade" under GRUDA 2011 while taking into account photographs as well as tax bills, he had given a report stating that construction work had taken place at the relevant building during the year 201011. That, while making out site inspection on 16.05.2013 alongwith Mr. Anil Joshi, at that tine, applicant and coaccused persons had verified and scrutinized the applications and submitted a report for the purposing of issuing notice for the impact fee under GRUDA. That, there is no further participation of the applicant in the incident. It is not the case of the prosecution that fire had taken place at the third floor of "Takshshila Arcade" and applicant is failed to perform his duty as Junior Engineer whle verifying the application under the GRUDA. That, as per the specific case of the prosecution the fire was erupted on the second floor due to shortcircuit in outer unit of one of the Air Conditioners. It is the case of the prosecution that the fire spread further and it travelled up to the third floor. That, as the staircase which was constructed from the third floor to Page 5 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT fourth floor was made of wood, and therefore, it caught fire and resultantly, the people were struck on the fourth floor. That, entire case is based on the illegal construction of the fourth floor with which the applicant is not concerned and that was also never a part of the application made by the owner under the GRUDA, because 4th Floor was not in existence in the year 2013.
Learned Senior Advocate for the applicant has referred the statement of one of the witness Mr. Devesh Gohil and report submitted by the present applicant and argued that fourth floor was illegally constructed in or around October November 2016 i.e., much after the COR was granted, and therefore, applicant was not connected with illegal construction of the fourth floor, which is the real concern in the present case. It is further argued by learned Senior Advocate for the applicant that as per the prosecution case, the applicant is failed to inspect the site and prior to issuance of notice for determining the impact fee. That, the allegations are completely ill founded.
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Learned Senior Advocate for the applicant has again referred the statement of one Mr. Devesh Gohil and submitted that the entire procedure of regularization is explained by him. As per his statement, the applicant was required to carry out site inspection which the applicant had carried out along with Mr. Anil Joshi. That, the said work done by the applicant is also evident from the work diary. That, prosecution case is merely based on the "Google Earth" images and there is no material evidence to support the said contention of the prosecution that the "Dome" was wrongly regularized by the authorities. That, the files, which were produced by the applicants of the building for regularization along with relevant documents, were scrutinized as per the procedure and applicant had carried out the site inspection and also found out the discrepancy in certain measurements and reported accordingly. That, considering the report, notice of impact fee was issued by the Executive Engineer to each of the applicants.
Learned advocate for the applicant has referred the statement of the Assistant Municipal Commissioner i.e., Page 7 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT Ajitsinh Motisinh Raj and submitted that the "Dome" was allegedly constructed between the cutoff date and the date of application. That, there is no nexus between the said construction and cause of fire. That, the case of the applicant can hardly be termed as "negligent". That, the applicant had never "knowledge" or "intention", which are the primary ingredients of Section 304 of IPC and the same cannot be attributed to the applicant. That, the applicant has throughout performed his duty under the GRUDA 2011 and after due verification and scrutiny, he has given appropriate report in that regard. That, necessary ingredients of the said offence are clearly missing in the allegations levelled against the present applicant. That, from bare reading of the FIR, it can never be inferred that the applicant had done the act which amounts to culpable homicide or knowledge that by such act, it was likely to cause death. That, site inspection was undertaken in the year 2013 and incident in question had taken place in the year 2019 due to short circuit in the outdoor unit of the Air Conditioner on the second floor.
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It is further submitted by learned Senior Advocate for the applicant that as there is no nexus of the act of the applicant and the cause of fire neither directly or indirectly. There is no overt act or negligence is attributed to the applicant which would have led to the unfortunate incident nor there is any proximity between the applicant performing his duties and the occurrence of the incidence. That, the primary ingredients of Section 304 of the Indian Penal Code are not satisfied against the applicant. That, Sections 465, 467, 468 and 471 of the Indian Penal Code were added later on. That, allegations of forgery do not satisfy the primary ingredients as enumerated under Section 463 and 464 of the Indian Penal Code. That, the Investigating Officer has failed to substantiate the allegations of forgery against the applicant. As per the prosecution case, documents submitted by the original owner were forged and ingenuine, but the original owners, who produced the alleged documents before Assessment and Recovery Department under the GRUDA2011, are not made an accused and are not in fact cited as witnesses. It is not the case of the prosecution that the Page 9 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT applicant has forged any signature or any document. That, prosecution has not submitted any opinion of handwriting expert and not even disclosed which documents are forged. That, the prosecution has failed to make out any allegations that the applicant had forged any document or even helped in creating a false document. It is further submitted that co accused person namely Jignal @ Jignesh Pagdhar was released on bail before charge sheet by the learned Sessions Court. That, other coaccused persons namely Sanjaykumar Laxminarayan Acharya, Dipakbhai Ishwarbhai Naik and Kirtikumar Jitubhai Mod have been released on regular bail by this Hon'ble Court. That, from the entire chargesheet papers, there is no iota of evidence showing any nexus of the alleged inactions of the applicant with the incident in question.
Learned Senior Counsel for the applicant has relied upon the order passed by this Court in Criminal Appeal No. 340 of 2020 and allied matters.
It is further submitted by learned Senior Advocate for the applicant that chargesheet is filed and investigation is over Page 10 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT and custody of the applicant is not required by the Investigating Officer, and therefore, it was requested by Senior Advocate for the applicant to release the present applicant on regular bail by enforcing stringent conditions upon the applicant.
Learned Public Prosecutor Mr Mitesh Amin for the respondentState has strongly objected the arguments advanced by Mr. S.V. Raju, learned Senior Counsel assisted by learned advocate Mr. Nandish Thackar for the applicant and argued that present applicant along with coaccused namely (1) Parag Devendra Munshi (2) Jayeshbhai Ramanbhai Solanki (3) Vinubhai Karsanbhai Parmar were working in Surat Municipal Corporation and were chargesheeted along with the present applicant. That, these three accused persons barring the present applicant preferred one regular bail application after filing of the charge sheet and out of all these three bail applications, application of accused person Parag Devendra Munshi was filed before this Hon'ble Court being Criminal Misc. Application No. 18198 of 2019. That, this application Page 11 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT was rejected by this Court vide order dated 6 th December 2019. That, the applicant of that application approached the Hon'ble Apex Court by filing Special Leave Petition which came to be numbered as Special Leave to Appeal (Criminal) No. 11530 of 2019. That, vide order dated 17.01.2020, the said SLP was dismissed. Learned Public Prosecution has relied upon the order of this Court passed in Criminal Misc. Application No. 18198 of 2019 and order of Hon'ble Apex Court passed in Special Leave to Appeal (Criminal) No. 11530 of 2019.
It is further submitted by learned Public Prosecutor that the application of the coaccused Shri Munshi was considered by this Court in detail on the basis of charge sheet material and this court has rejected the same giving detailed reasons. That, this Hon'ble Court has reserved liberty of the accused to file fresh application before the concerned Sessions Court after a period of six months if trial is not commenced. That, this Court in a matter of Shri Munshi has specified role of that applicant from the material of the investigation as this accused in connivance of others have played major role in regularization Page 12 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT of the illegal construction without following procedure prescribed under the provisions of the GRUDA and rules framed thereunder. That, role of the present applicant is not only very much comparable with the accused Shri Munshi but is also on little bit higher footing as present applicant was supposed to make site visit, which according to the case of the investigation, is regularized through the said site was having illegal construction and that illegal construction was made subsequent to the cutoff date of 28.03.2011. That, other two Engineers of Surat Municipal Corporation namely Jayeshbhai Ramabhai Solanki has preferred Criminal Misc. Application No. 18853 of 2019 after filing of the charge sheet, which was withdrawn by him, as Hon'ble Supreme Court had already decided application of other accused Shri Munshi on 17.01.2020. That, while granting permission for withdrawal this Court had referred order of the Hon'ble Apex Court regarding expediting the process for completing the process of framing of charge within specified period. That, another co accused namely Vinubhai Karsanbhai Parmar had also Page 13 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT preferred regular bail application being Criminal Misc. Application No. 18854 of 2019 after filing of the charge sheet. That, the said application was also withdrawn vide order dated 27.01.2020. That, as per the order of the Hon'ble Apex Court. Process of completing stage of framing of charge to be expedited by learned trial Judge and in the event that this process is delayed beyond three months for the reasons other than the conduct of the applicant. That, on 01.02.2020, list of documents was submitted by the prosecution as well as prosecution led proposed charge against the accused before the learned Sessions Court. That, subsequent thereto, charge sheeted accused no.2, 3, 6 and 11 submitted discharge application on 03.03.2020 and present applicant also submitted application for discharge on 02.03.2020. That, oral submissions were made before the court by the parties and matter is presently pending for order. That, applicant had delayed the process of framing charge, and therefore, he is responsible for his conduct of delaying the process of framing of charge and considering the order passed by the Hon'ble Page 14 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT Apex Court on 17.01.2020 as well as order of this Court dated 27t.01.2020, process of framing of charge is delayed by the conduct of the present applicant. Therefore, right to prefer fresh application for bail is not helpful to him. Relying upon the order of the Hon'ble Apex Court passed in Special Leave to Appeal (Criminal) No. 11530 of 2019 and order of this Court passed in Criminal Misc. Application No. 18853 of 2019, learned Public Prosecutor has requested to dismiss the present application preferred by the applicant.
Learned advocate Mr. Ashish Dagli for the original victim has argued that fire was taken place near Sarthana Jakat Naka in the shopping centre called as " Takshashila Arcade" and the entire building is affected on account of the fire. That, on 4 th Floor, boys and girls were trapped and as a situation arose thereto to survive, they jumped from the 4th Floor and accordingly, about 22 students have lost their lives. That, the classes were running on the 4th Floor in which students were trapped and staircase connected to 3rd and 4th Floor was also burnt. That, on conclusion of the investigation, charge sheet Page 15 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT was filed against the applicant and it was found during the course of investigation that the builder in connivance with the applicant initiated proceedings for regularization of the illegal construction and for which, documents to show that construction was made before cut off date ie., 20.03.2011, a bogus document, bills of one Navyug Enterprise was submitted which was later on found to be forged one. That, additional chargesheet was filed under Section 465, 467, 468 and 471 of the Indian Penal Code. It is further submitted that during the course of investigation, it was found that though the construction of dome was made after cut off date but because of connivance with the applicant to take the benefit of the Gujarat Regulation of Unauthorized Development Act (benefit of impact fee), the applicant who had made an inspection in the file of a certificate of Navyug Enterprise that the work was over for 3rd Floor on 28.07.2010 and such certificate was given on 30.07.2010 by Navyug Enterprise, and in support thereof, bogus bills were attached. A report was submitted by the applicant in favour of the builder and acted in connivance with Page 16 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT the builder. Learned advocate Mr. Dagli has also supported the arguments advanced by learned Public Prosecutor for the respondentState and has relied upon the order of this Court passed in case of Mr. Munshi as well as order passed by Hon'ble Apex Court in Special Leave to Appeal (Criminal) No. 11530 of 2019 on 17.01.2020. It is further submitted that the complexity in the commission of offence is clearly established and also revealed that the request made by him found to be not tallying with the situation at the site. That, looking to the seriousness of the incident, gravity of offence overall impact upon the society where 22 innocent children/students have lost their lives and also 19 suffered injuries, it was argued that no discretion can be exercised in favour of the present applicant by enlarging him on bail.
Having heard learned advocates for the respective parties as well as learned Public Prosecutor for the respondentState, perusing the papers produced on record, it appears that entire case of the prosecution has been divided into three different zones in terms of attributing the causes to the incident. First of Page 17 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT all, the cause of the fire was a short circuit on the second floor, and therefore, the officers of the GEB were implicated. Due to the fire, many students from the fourth floor could not escape because of the illegal construction, and therefore, the officers concerned at the relevant point of time ie., during the period of regularization, are roped in. Secondly the fire officers, who did not ensure the fire safety in the said building even when directed by the higher officers. If we may consider the second zone, the applications made under the GRUDA2011 were only for the ground floor, first floor, second floor and third floor. As per the case of the prosecution. "Dome" was not in existence before the cutoff date prescribed in the Act, and therefore, the applicant and other coaccused persons had committed the present offence. In fact, it appears that "Dome" was not in issue in the present case wherein the real issue is the illegal construction of the fourth floor, which was admittedly after the year 2015. In all 18 applications were received for regularization of the building in question ie. "Takshashila Arcade" from the owners alongwith necessary documents and Page 18 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT photographs having stamp of concerned Architect. All the applicants had also attached the tax bills of the year 201213 showing the age of the property as 2 years. On 04.04.2013, the applicant was allotted the work of ascertaining the impact fee in Varachha Zone TP No. 22, which includes subject building. The applicant was serving as Junior Engineer, and therefore, appointed alongwith four other Assistant Engineers and by office order, the applicant was directed to undertake the work along with one Mr. Anil Joshi, which transpires from the document marked as AnnexureF and it also appears from the other documents marked as AnnexureG (Colly.). On 16.05.2013, the applicant along with Mr. Anil Joshi had carried out physical site inspection of the subject building and had identified the discrepancies which were recorded with the handwriting of the applicant on the map submitted by the owner. As a part of the procedure, the applicant was required to maintain the work diary of the task,which was undertaken by him, and accordingly, had recorded in his work diary along with Mr. Anil Joshi and by that way, site inspection of the Page 19 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT building in question was carried out by both of them on 16 th May 2013. From the documents produced vide AnnexureH (Colly.), it appears that on 12th July 2013, a detailed report was submitted by the applicant about the site inspection carried out by him as well as Mr. Anil Joshi and had pointed out some discrepancies of the measurements in the building in question and this report was submitted by the applicant to the Executive Engineer. After considering the report submitted by the present applicant, the coaccused namely Parag Munshi, who was serving as an Executive Engineer, had issued notice for impact fee on finding the variations in the measurements to the concerned owners and necessary documents on this aspect are produced at AnnexureH (Colly.) Thereafter, it appears from the document being AnnexureI that on 1 st April 2015, by way of an office order, the portfolio of T.P. Scheme No. 22 (in which building in question was situated) was given to one Mr. V. K. Parmar, and thereafter, entire procedure of submitting a report for the purpose of issuing certificate of regularization was carried out by him and not by the applicant, as the Page 20 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT applicant was transferred before the procedure in granting COR was carried out. It appears from the AnnexureJ (Colly.) that on 14.07.2015, the certificate of regularization came to be issued by the coaccused ie. Jayesh Solanki with regard to the construction of third floor along with the Dome. The applicant was not connected with the process of the grant of the certificate of regularization. It appears from the document marked as AnnexureK that the Officers of the Varachha zone had visited the premises in question at the instruction of Commissioner of Surat Municipal Corporation and had found that the building was being used as per the certificate of regularization issued by the Corporation in the year 2015. It also appears that around October 2016, fourth floor was illegally constructed just before Demonetization and was put to use in the year 2017 and on the fourth floor, NATA classes were being run by the coaccused namely Bhargav Butani and all the students were stranded on the fourth floor at the time of incident and this fact was cleared from the statement of one witness Shailesh Dobariya and second witness Bharatbhai Page 21 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT Paghdhar. The statements of both these witnesses suggest that 4th Floor was constructed after the certificate of regularization was granted. Thus, prima facie it appears that the applicant was not connected with the said illegal construction or granting certificate of regularization as well as 22 students who were stranded as there was only single entry and exit staircase made of wood. This unfortunate incident of fire was taken place on 24th May 2019 and FIR came to be registered with Sarthana Police Station for the offence punishable under Sections 304, 308 and 114 of the Indian Penal Code on 24 th May 2019. The applicant was summoned for the first time on 2nd July 2019, however, his name was not shown in the FIR. Chargesheet came to be filed against the coaccused persons on 20th July 2019, wherein the name of the applicant was shown in the column no. 2 even when his anticipatory bail application was pending for consideration. It also appears from the record that this Court (Hon'ble Mr. Justice Vipul M. Pancholi, J.) was pleased to release the coaccused persons namely Sanjaykumar Laxminarayan Acharya, Dipakbhai Page 22 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT Ishwarbhai Naik and Kirtikumar Jitubhai Mod on regular bail and copy of that order dated 3 rd December 2019 is annexed by the applicant as AnnexureN (Colly.).
At the initial point, coaccused namely Jignal @ Jignesh Pagdhar was also released on bail by the learned Sessions Court on 08.07.2019. Mr. Devesh Gohil, in his statement, has clearly explained the entire procedure of regularization and as per his statement, the applicant was required to carry out site inspection, which the applicant did carry out along with Mr. Anil Joshi. It is also clarified from the work diary that inspection was carried out by them. There is no material from the chargesheet papers to support the case of the prosecution that "Dome" was allegedly regularized by present applicant in connivance with other coaccused. The documents produced by the applicants of the building for regularization along with relevant documents were scrutinized as per the procedure and applicant had carried out site inspection. The applicant had also found certain discrepancies in certain measurements and had reported it accordingly. Considering the said report, notice Page 23 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT of impact fee came to be issued by the Executive Engineer to each of the applicants. This fact was cleared from the statement of the Assistant Municipal Commissioner namely Ajitsinh Motisinh Raj. It appears from the facts that applicant can hardly be termed as "negligent" as he had no knowledge or intention which are the primary ingredients of Section 304 of the Indian Penal Code, and therefore, same cannot be attributed to the applicant.
From the bare reading of the FIR, it cannot inferred that the applicant had done the act which amounts to culpable homicide or he had knowledge that by such act, it was likely to cause death. The allegations of forgery do not satisfy the primary ingredients as enumerated under Section 463 and 464 of the Indian Penal Code. As per the case of the prosecution, documents submitted by all the original owners were forged and ingenuine and these documents were produced before the Assessment and Recovery Department, but they are not made an accused and are in fact not cited as witnesses. It is nowhere stated by the prosecution that the applicant has forged any Page 24 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT signature or any document or has identified himself to be to be another. No opinion of hand writing expert was obtained by the prosecution nor even disclosed which documents were forged. No allegation was made by the prosecution against the present applicant that he had forged any document or even helped in creating a false document. If we consider the order of this court passed in Criminal Misc. Application No. 18198 of 2019 preferred by Mr. Parag Devendra Munshi for the alleged offence, in para 15 of this order, this Court has observed that:
"It is not in dispute that the applicant was working as Deputy Engineer with Surat Municipal Corporation and he has passed an order of regularization of the illegal construction made by the coaccused in the premises in question. It is the specific case of the prosecution that the present applicant has without following procedure prescribed under the provision of the GRUDA and the Rules framed thereunder, in connivance with coaccused, passed an order of regularization of the illegal construction made by the coaccused."
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Role of the coaccused namely Mr. Parag Devendra Munshi, whose bail application was rejected by this Court as well as Hon'ble Apex Court in Special Leave to Appeal (Criminal) No. 11530 of 2019 was quite different from the role of the present applicant, and therefore, ratio laid down in the order passed in the application preferred by coaccused Mr. Munshi would not apply in the present case.
Considering the facts and circumstances, on the contrary, other accused are granted regular bail by this Court (Coram Hon'ble Mr. Justice Vipul M. Pancholi, J.) and the copies of such orders are annexed in the petition vide AnnexureN. The discharge application filed by the present applicant before the learned Sessions Court on 2nd March 2020 would not term that he is delaying the procedure of framing of charge. It can be said that he is accruing his statutory right and the said application was also heard and it kept for order, and therefore, the matter was not proceeded.
In the facts and circumstances of the case and considering the nature of allegations made against the Page 26 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT applicant in the FIR, I am of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being CR No. I246 of 2019 registered with Sarthana Police Station, Dist: Surat, on executing a personal bond of Rs.10,000/ (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the learned 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] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] furnish latest and permanent address of residence to the Investigating Officer and also to the Court at the Page 27 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020 R/CR.MA/8148/2020 CAV JUDGMENT time of execution of the bond and shall not change his residence without prior permission of Sessions Court concerned;
The Authorities will 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 Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond 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 Sessions Court will not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
Rule is made absolute to the aforesaid extent. This order be communicated to the applicant through Jail Authorities by the registry as well as learned Sessions Court concerned.
(B.N. KARIA, J) BEENA SHAH Page 28 of 28 Downloaded on : Tue Jul 07 22:43:46 IST 2020