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CR.MA/9628/2011 27/ 27 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9628 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ASIM
NIRANJAN CHAKRABORTY - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
P.M.THAKKAR,SR. ADVOCATE with MR.NAVIN K PAHWA
for
Applicant(s) : 1,
MR. R.C. KODEKAR, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 12/09/2011
CAV
JUDGMENT
This
is an application preferred by the accused-applicant under Section
438 of the Criminal Procedure Code, (for short, ‘the Code’) in
connection with offence registered with CID Crime, Rakot Zone Police
Station, vide C.R. No.I-9 of 2010 for the offences punishable under
Sections 217, 409, 465, 467, 468, 471, 476 and 120(B) of the Indian
Penal Code.
The
case of the prosecution, in brief, can be summarized as under:-
(i)
The accused-applicant is serving with a Multinational Public Limited
Company known and recognized as ‘Welspun Corporation Limited’, having
its registered office at Village Varshamedi, Taluka: Anjar, District:
Kutch. The accused-applicant is serving in the company in his
capacity as Vice President. The Welspun group of companies, way back
in the year 2003, preferred applications for allotment of lands
bearing Survey Nos. 652, 692, 665, 667, 668, 670, 684, 692, 890 and
few other survey numbers situated at village Varshamedi, Taluka:
Anjar, District: Kutch. This demand for the allotment was on the
basis of one resolution bearing No.JMN/392003/454/A (R.D.) issued by
the State of Gujarat dated 6th June 2003, simplifying the
process of allotment of Government land for industrial growth in the
District of Kutch, which was severely affected by earthquake.
For
this purpose, a District Land Valuation Committee was constituted,
which comprises of the following persons:-
(a)
District Collector;
(b)District
Development Officer;
(c)Deputy
Town Planner; and
(d)Resident
Deputy Collector as Member Secretary.
(ii)
It is the case of the prosecution that the Company approached the
then District Collector-original accused no.1 Mr.Pradeep N.Sharma.
The said Mr.Pradeep Sharma, abusing his position and power as a
Collector and with a sole motive to favour the Company and thereby
derive monetary gain for himself, made many more allotments in favour
of the Company, admeasuring lands upto 1,74,014 sq. meters in gross
violation of the resolution of the State of Gujarat dated 6th
June 2003, which empowers the Collector to allot only upto two
hectares of land i.e. 20,000 sq. meters.
(iii)
It is the case of the prosecution that as a part of criminal
conspiracy huge parcels of land were alloted in favour of the Welspun
Group of Companies at a very meager price of Rs.15.00 per sq. meter.
It is also the case of the prosecution that when subsequently other
proposals for allotment of lands were forwarded to the State
Government, the allotments were made at the rate of Rs.78.00 per sq.
meter, as according to the case of the prosecution, the correct rate
was Rs.78.00 and not Rs.15.00.
(iv)
It is the case of the prosecution that the Company, in collusion with
original accused no.1, the then District Collector and other
co-accused, by adopting corrupt practices, are responsible for
causing loss to the public exchequer and revenue to the tune of
Rs.1,04,61,622.00 and loss of stamp duty to the tune of
Rs.15,69,240.00.
(v)
It is also the case of the prosecution that in the year 2004, the
original accused no.1, the then District Collector had obtained a
mobile sim card bearing No.9925199799 in the name of the present
accused-applicant. This mobile was recovered from the possession of
the original accused no.1, the then District Collector and the record
indicates that the bill amount of the mobile was being paid by the
company. For the period between 2004 till 2009, the mobile was used
by the original accused no.1, the then District Collector and the
total aggregate amount towards the bill to the tune of Rs.2,24,036.00
was paid by the company.
(vi)
It deserves to be noted that the offence, which is alleged to have
been committed by the applicant-accused is of the year 2004.
However, it is the case of the prosecution that the offence could be
unearthed only in the year 2010. It is also the case of the
prosecution that, the then District Collector, Mr.Pradeep N.Sharma,
not only favoured the Welspun Group of Companies but many other
persons including other companies by indulging himself in corrupt
practices.
(vii)
The original accused no.1, the then District Collector, Mr.Pradeep
N.Sharma was first to be arrested and as on today, about five
prosecutions have been instituted against original accused no.1,
Mr.Pradeep N. Sharma.
(viii)
This Court considered regular bail application of original accused
no.1, the then District Collector, Mr.Pradeep N.Sharma in connection
with the offence registered with CID Crime, Rajkot Zone Police
Station vide C.R. No.I-9 of 2010. This Court vide order dated 22th
June 2011, rejected the regular bail application of original accused
no.1. While rejecting the regular bail application of original
accused no.1, this Court observed as under:-
“However,
with everything I have observed, I would be failing in my duty if I
ignore or avoid to place the following facts on the record of this
order :-
Prosecution
case is very clear. According to the prosecution, a conspiracy was
hatched and as a part of the conspiracy, the accused-applicant
passed certain orders of allotment of lands in favour of the
Company. It is but obvious that the accused-applicant would not,
just for the sake of obliging the Company, must have passed the
orders of allotment. The question which is haunting the mind of this
Court is as to why no action has been taken against the Company in
whose favour the parcels of lands came to be allotted and that too
huge parcels of lands. If conspiracy is alleged then, why the
Company is not an accused or no person from the Company has been
made an accused. Investigation is over, charge-sheet is filed. Is it
the case that during the entire course o0f investigation the
prosecution was unable to find any evidence against the Company or
any responsible person of the Company who could be a part and parcel
of the conspiracy as alleged. This question has not been
satisfactorily answered.
If
the State is so much concerned about the loss of public exchequer or
revenue, then why till this date no concrete steps have been taken
to recall the orders of allotment of lands. It is true that now the
Company is having a huge manufacturing unit, but still if the
earlier allotments are illegal and are said to have been obtained by
playing fraud and by commission of offence, then the State can
definitely initiate appropriate steps in this regard.
As
on today, nothing concrete is coming forth on record to even, prima
facie, suggest that the State Government has taken any action in this
regard against the Company.”
This
Court also observed as under:-
“I
would have leaned in exercising my discretion in favour of the
accused – applicant even while accepting the case of the
prosecution, prima facie. However, I cannot ignore the fact that the
accused – applicant is facing as many as five prosecutions as
on today. Had it been one solitary case or one solitary prosecution,
the prayer for bail could have been considered. In one of the
prosecutions, the accused – applicant has been ordered to be
enlarged on bail by the Hon’ble Supreme Court, but at that relevant
point of time, that was the only case registered against the accused
– applican except one prosecution for the offences punishable
under the Prevention of Corruption Act, 1988 wherein, till this date,
the accused – applicant has not been arrested.”
It
appears that the State has now decided to proceed against the
Company alleged to have received undue favours at the hands of
original accused no.1 in so far as allotment of lands is concerned.
Apprehending
arrest at the hands of CID Crime, Rakot Zone Police Station, the
accused-applicant herein preferred Criminal Misc. Application No.245
of 2011 in the Court of Sessions Judge, Bhuj. The learned 3rd
Additional Sessions Judge, Kutch-Bhuj vide order dated 30th
June 2011, rejected the bail application. It is at that stage that
the accused-applicant preferred present application praying for
anticipatory bail.
I
have heard learned senior counsel Mr.P.M.Thakkar appearing with
Mr.Navin K.Pahwa for the accused-applicant and learned APP, Mr.R.C.
Kodekar for the State.
Learned
counsel appearing on behalf of the accused-applicant put forward the
following contentions:-
(a)
The incident in question has taken place in the year 2004. The FIR is
filed after a period of 6 years. The delay of 6 years in filing the
FIR is indicative of the fact that the same is filed with oblique and
ulterior motive.
(b)
The accused – applicant is an employee of the Company. The
accused – applicant is a Civil Engineer and is in the company
engaged as technical expert. No vicarious liability can be fastened
in the criminal cases.
(c)
The accused – applicant has no past history or antecedents.
(d)
The allotment of the land is made by the authorities in favour of the
companies for the purpose of industrial activities. The companies
purchased the land at more than the market price.
(e)
The companies purchased about 1800 acres of land on which about 5
industrial units are established. The average mean price paid by the
companies is only Rs.6/- per sq.meter as against that, the companies
have paid Rs.15/- to Rs.18/- per sq.meter in respect of 40 acres of
land which is the subject matter of the FIR.
(f)
The total investment made by the companies is about 4327 crores. The
State Government and the Central Government has given incentives of
about 21276 crores. The annual turn over of the company is about 4547
crores. These companies are the largest employers in the region and
employing about 15000 direct or indirect employees.
(g)
The allotment of the land has become final in the year 2004 and no
challenge is ever made. The companies are allowed to put the
construction of the industrial units and they have also become
operational.
(h)
The accused – applicant is not a public servant, there was no
entrustment of property in the capacity of public servant. No offence
under Section 409 of IPC is made out against the accused –
applicant.
(i)
The accused – applicant has not made any forged document for
the purpose of cheating.
(j)
The accused – applicant has not used any ingenuine document as
genuine document despite it knowingly to be ingenuine.
(k)
The accused – applicant is sought to be involved in the
offences which are triable by the learned Judicial Magistrate, First
Class.
(l)
The accused – applicant is serving at the address mentioned in
the memo of the petition and staying at Bhuj. The accused –
applicant was called by the Investigating Officer, statement was
recorded and has fully cooperated in the investigation.
(m)
The learned counsel also submitted that the learned Sessions Judge
has incorrectly stated in para 13 of the judgment that the accused –
applicant is shown in the second column of charge sheet. It is
submitted that the accused – applicant is permanently serving
at the address stated in the memo of the petition and staying at
Bhuj-Kutch. The accused – applicant was called by the
Investigating Officer and the accused – applicant remained
present before him at Gandhinagar, Rajkot and Bhuj on several
occasions where his statements were also recorded. The accused –
applicant has visited the police station and has fully cooperated in
the process of investigation. In view of this, the accused –
applicant may kindly be released on anticipatory bail.
The
learned counsel has drawn my attention to a chart which has been
prepared to indicate that the accused-applicant is fully cooperating
with the investigation and has remained present before the concerned
Investigating Agency from time to time.
Sr.No.
Received
Date
Message
Particulars
Place
Reply
Date
1.
12.8.2010
To
remain present
Accountant
with Details
CID
Crime, Gandhinagar
–
2.
4.12.2010
For
information
Memorandum
of Articles – all three unit
CID
Crime, Rajkot
6.12.2010
3.
27.12.2010
For
information
Details
of (1) Mahendra Rajguru and (2) Arvind Agrawal
CID
Crime, Rajkot
28.12.2010
4.
5.2.2011
For
information
Details
of project in charge at 2004 and his appointment order
CID
Crime, Gandhinagar
12.2.2011
5.
12.2.2011
For
information
Details
of all unit
CID
Crime, Gandhinagar
15.2.2011
6.
8.3.2011
For
information
Power
of attorney of A.K.C./Rajguru/ A.Agrawal
CID
Crime, Rajkot
9.3.2011
7.
14.3.2011
For
information
Details
of A.K.C.
CID
Crime, Rajkot
16.3.2011
8.
23.7.2011
To
remain present
A.K.C.
at Gandhinagar on 8.7.2011
CID
Crime, Gandhinagar
–
9.
14.5.2010
To
remain present
A.K.C.
at Gandhinagar
CID
Crime
–
10.
22.9.2010
To
remain present
A.K.C.
at Gandhinagar
CID
Crime
–
11.
6.2.2011
Information
Information
of land applications filed by the company
CID
Crime
–
Per
contra, learned APP Mr.Kodekar appearing on behalf of the State
submitted that at the relevant point of time when the Company was
alloted land at a meager price of Rs.15.00 by the Committee headed
by the original accused no.1, the then District Collector, the
accused-applicant herein was looking after the affairs at
Kutch-Bhuj, where the Company was desirous of putting up industrial
plant. Learned APP further submitted that though the
accused-applicant is a paid employee of the Company, still there is
material to show that he was in touch with the then District
Collector i.e. original accused no.1, all the time till the orders
of allotments were passed. Learned APP further submitted that a sim
card in the name of the accused-applicant was being used by original
accused no.1, the then District Collector and the bill amount was
also being paid by the Company, which is indicative and suggestive
of the fact that the Company did receive undue favour from original
accused no.1, who, in his capacity as public servant, adopted
corrupt practices. Learned APP, therefore, submitted that since
there is a prima-facie case against the accused-applicant, this
Court may not exercise discretion in favour of the
accused-applicant. The learned APP further submitted that custodial
interrogation is necessary taking into consideration the peculiar
facts and circumstances of the case. An affidavit-in-reply has also
been filed by the Police Inspector, CID Crime, Bhuj. It is not
necessary to reproduce the entire affidavit-in-reply, but it would
be expedient to quote paragraphs 8,9,10,11 and 12 of the
affidavit-in-reply, which read as under:-
“8.
It is further respectfully submitted that from item No.5 to 9 of the
aforesaid mentioned chart, it clearly shows the active participation
of the present petitioner in fixing the rate of Rs.15.00 per sq.meter
without even calling for the District Land Valuation Committee.
9.
It is further case of the investigating agency that so far as
materials collected by the investigating agency against the present
petitioner herein is that the SIM Card bearing Mobile No.9925199799
was in the name of Shri Asim Niranjan Chakraborty i.e. petitioner
herein given by company. The said mobile with SIM Card was utilised
by the accused no.1 from the year 2004 to 2009 and the bill incurred
thereon of Rs.2,24,036.00 (Rupees two lacs twenty four thousand
thirty six only) was paid by Welspun India Limited. The separate
offence has been registered against accused no.1 being C.R. No.I-3 of
2010. Another material collected by the investigating agency against
the petitioner herein is to facilitate providing the contract of
corrugated boxes to the company in the name and style of M/S.Value
Packaging Factory in which wife of the accused no.1 Mrs.Shyamal
Pradeepkumar Sharma was 30% partner. By awarding this contract to the
wife of accused no.1 the favour was obtained by the company for
illegal gain. This role of the petitioner is causing huge loss of
public exchequer to the tune of Rs.1,20,30,824 (Rupees one crore
twenty lacs thirty thousand eight hundred twenty four only) by way of
collusion with accused no.1 in order to gain the economic profit for
his company.
10.
It is further respectfully submitted that during the course of
investigation in the present offence, the petitioner was examined as
witness on 9th March 2011. It is relevant to note over
here at this stage that after examining other witnesses and material
collected during the course of investigation my predecessor has
sought for permission to arrest the petitioner herein vide letter
dated 31st March 2011 and the superior officers has
granted the permission of arrest vide his order dated 30th
July 2011.
11.
It is further submitted that the investigating agency has tried to
trace him on the given addresses at Vadodara and Anjar, but the
petitioner herein could not be found and hence it is not correct to
say that the petitioner herein has cooperated with the investigating
agency.
12.
Looking to the nature and gravity as well as wide spectrum of the
offence which has directly bearing upon the public life, custodial
interrogation by the investigating agency is essential for eliciting
the truth. Hence, in the interest of justice, no interference is
called for utilizing discretion in favour of the petitioner herein;
hence this petition deserves to be dismissed.”
In
rejoinder, learned Senior Counsel submitted that the sim card
bearing Mobile No.9925199799 was not in the name of the petitioner.
The sim card was issued by Vodafone, a mobile company, in the name
of the Company. The sim card was part of the close user group (CUG).
The bills which were raised on such sim card number are also paid by
the Company. The mention of the name of the accused –
applicant after the name of the Company is only for the account
purpose as name of some employee is required to be given for getting
benefit of CUG. It is stated that the sim card is never allotted or
used by the accused – applicant.
Having
heard learned counsel appearing on behalf of the accused-applicant
and learned APP, appearing on behalf of the State, I shall now
proceed to consider whether discretion can be exercised in favour of
the accused-applicant or not.
The
Hon’ble Supreme Court in the recent pronouncement has made the
position of law very clear so far as Section 438 of the Code is
concerned. In the case of Siddharam Satlingappa Mhetre Vs. State
of Maharashtra & Ors., reported in (2011) 1 Supreme Court
Cases 694, the Supreme Court has held as under:
93.It
is a matter of common knowledge that a large number of undertrials
are languishing in jail for a long time even for allegedly
committing very minor offences. This is because section 438 Cr.P.C.
has not been allowed its full play. The Constitution Bench in
Sibbia’s case (supra) clearly mentioned that section 438 Cr.P.C. is
extraordinary because it was incorporated in the Code of Criminal
Procedure, 1973 and before that other provisions for grant of bail
were sections 437 and 439 Cr.P.C. It is not extraordinary in the
sense that it should be invoked only in exceptional or rare cases.
Some courts of smaller strength have erroneously observed that
section 438 Cr.P.C. should be invoked only in exceptional or rare
cases. Those orders are contrary
to th law laid down by the judgment of the Constitution Bench in
Sibbia’s case (supra). According to the report of the National
Police Commission, the power of arrest is grossly abused and clearly
violates the personal liberty of the people, as enshrined under
Article 21 of the Constitution, then the courts need to take serious
notice of it. When conviction rate is admittedly less than 10%,
then the police should be slow in arresting the accused. The courts
considering the bail application should try to maintain fine balance
between the societal interest vis-a-vis personal liberty while
adhering to the fundamental principles of criminal jurisprudence
that the accused is presumed to be innocent till he is found guilty
by the competent court.
95.The
gravity of charge and exact role of the accused must be properly
comprehended. Before arrest, the arresting officer must record the
valid reasons which have led to th arrest of the accused in the case
diary. In exceptional cases the reasons could be recorded
immediately after the arrest, so that while dealing with the bail
application, the remarks and observations of the arresting officer
can also be properly evaluated by the court.
96.It
is imperative for the courts to carefully
and with meticulous precision evaluate the facts of the case. The
direction must be exercised on the basi of the available material
and the facts of the particulars case. In cases, where the court is
of the considered view that the accused has joined investigation and
he is fully cooperating with the investigating agency and is not
likely to abscond, in that event,custodial interrogation should be
avoided.
97.
A great ignominy, humiliation and disgrace is attached to the
arrest. Arrest leads to many serious consequences not only for the
accused but for the entire family and at times for the entire
community. Most people do not make any distinction between arrest
at a pre-conviction stage or post-conviction stage. Whether the
powers under section 438 Cr.P.C. are subject to limitation of
section 437 Cr.P.C.?
98.The
question which arises for consideration is whether the powers under
section 438 Cr.P.C. are unguided or uncanalised or Constitution
Bench in Sibbia’s case (supra) has clearly observed that there is no
jstification for reading into section 438 Cr.P.C. and the
limitations mentioned in section 437 Cr.P.C.. The Court further
observed that the plentitude of the section
must be given its full play. The Constitution Bench has also
observed that the High Court is not right in observing that the
accused must make out a “special case” for the exercise
of the power to grant anticipatory bail. This virtually, reduces
the salutary power conferred by section 438 Cr.P.C. to a dead
letter. The Court observed that “We do not see why the
provisions of Section 438 Cr.P.C. should be suspected as containing
something volatile or incendiary, which needs to be handled with the
greatest care and caution imaginable.”
122.
The following factors and parameters can be taken into consideration
while dealing with the anticipatory bail:
i.
The nature and gravity of the accusation and the exact role of the
accused must be properly comprehended before arrest is made;
ii.
The antecedents of the applicant including the fact as to whether the
accused has previously undergone imprisonment on conviction by a
Court in respect of any cognizable offence;
iii.
The possibility of the applicant to flee from justice;
iv.
The possibility of the accused’s likelihood to repeat similar or the
other offences.
v.
Where the accusations have been made only with the object of
injuring or humiliating the applicant by arresting him or her.
vi.
Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people.
vii.
The courts must evaluate the entire available material against the
accused very carefully. The court must also clearly comprehend the
exact role of the accused in the case. The cases in which accused is
implicated with the help of sections 34 and 149 of the Indian Penal
Code, the court should consider with even greater care and caution
because over implication in the cases is a matter of common knowledge
and concern;
viii.
While considering the prayer for grant of anticipatory bail, a
balance has to be struck between two factors namely, no prejudice
should be caused to the free, fair and full investigation and there
should be prevention of harassment, humiliation and unjustified
detention of the accused;
ix.
The court to consider reasonable apprehension of tampering of the
witness or apprehension of threat to the complainant;
x.
Frivolity in prosecution should always be considered and it is only
the element of genuineness that shall have to be considered in the
matter of grant of bail and in the event of there being some doubt
as to the genuineness of the prosecution, in the normal course of
events, the accused is entitled to an order of bail.”
It
is not in dispute that this Court rejected regular bail application
of original accused no.1, the then District Collector Mr.Pradeep N.
Sharma by a very exhaustive order dated 22nd June 2011.
While deciding the regular bail application of original accused
no.1, this Court wondered as to why no action has been taken against
the Company. It appears that the Investigating Agency from August
2010 onwards started interrogating the accused-applicant herein. It
also appears that for number of times, the accused-applicant had
appeared before the Investigating Agency and appears to have adduced
the necessary information and material to facilitate the
investigation. The investigation got completed and charge-sheet
also came to be filed against original accused no.1 and few other
co-accused. However, even at that point of time, the Investigating
Agency did not deem fit to file charge-sheet against the present the
accused-applicant. However, the fact remains that the entire
investigation is over. The only formality, which now needs to be
completed, is to file charge-sheet against the accused-applicant
after showing his formal arrest. At this stage, I do not propose to
go into the merits or demerits of the prosecution case against the
accused-applicant and it is not desirable in view of the fact that,
it will be for the trial Court to pronounce judgment on the merits
of the evidence but, it is necessary to say this much to make it
clear that, I have taken into consideration the guiding principles
laid down by the Apex Court in the case of Siddharam Stalingappa
Mhetre (supra) so far as grant of anticipatory bail is concerned and
the following guiding principles which are as under:-
Whether
releasing the accused on bail is in any way forbidden by any
statutory provision ?
Whether
he would intimidate the witnesses or win over them for getting
support to his defence and/or for abstaining from supporting the
prosecution ?
Whether
he would be available easily at the time of his trial and would
submit to the custody if convicted and sentenced at last or would
flee and would not be available ?
Whether
he would tamper with the evidence ?
Whether
he would commit like-wise or any other offence or wrong directly or
indirectly remaining behind curtain ?
Whether
he would be retributive or revengeful or retaliative, i.e. whether
his release will endanger safety of the persons, viz. Complainant
and witness or other concerned or property ?
Whether
his own safety is likely to be endangered ?
Whether
larger good, national interest, social order, national security,
public safety and/or health are likely to be jeopardised ?
The
nature and gravity of offence being shocking and alarming or
barbaric and day in and day out its effect spreads panic amongst the
people or section of the people or damages civilization in the
society turning back to jungle law ?
Other
peculiar circumstances of each case appearing on record, dictating
the exercise of discretion in particular way.
Taking
into consideration the fact that the accused-applicant is a paid
employee working as a Vice President of Welspun Corporation Ltd. and
most importantly taking into consideration the fact that he has
cooperated with the investigation so far and has fully agreed to
cooperate further and join the investigation, I am of the view, as
held by the Apex Court in the case of Siddharam Stalingappa Mhetre
(Supra), that custodial interrogation should be avoided.
I
am of the view that practically now nothing is to be investigated
in the matter. The investigation is over long time back and
charge-sheets have been filed against the respective other
co-accused. However, at the relevant point of time, the
Investigating Agency did not deem fit to arraign the
accused-applicant as one of the accused. Even, while rejecting the
regular bail application of the accused-applicant, I have observed
as stated in the earlier part of this order that, I would have
leaned in exercising my discretion in favour of original accused
no.1 also even while accepting case of the prosecution prima-facie.
But, for the fact that original accused no.1, in his capacity as a
public servant, is now facing not less than five prosecutions and
there was prime evidence to come to the conclusion that, he would
have absconded. I have considered this aspect very exhaustively in
the order dated 22nd June 2011 passed in Criminal Misc.
Application No.3934 of 2011.
In
the present case, the accused-applicant is aged about 55 years. He
is serving with Welspun Corporation Ltd. past couple of years. He
has cooperated with the investigation so far and has also undertaken
to further cooperate and join the investigation, if necessary. He
has his own roots in the society and also a family. Therefore,
there is no apprehension of accused-applicant absconding or fleeing
from justice. The offences otherwise also are triable by a
magistrate and the entire prosecution case is based on documentary
evidence.
In
the above view of the matter, I am of the opinion that though there
may be a prima-facie case against the accused-applicant, still
discretion can be exercised in favour of the accused-applicant
keeping in mind the factors and parameters as laid down by the Apex
Court in the case of Siddharam Satlingappa Mhetre (supra) and also
taking into consideration the fact that custodial interrogation is
not necessary.
In
the result, the Application succeeds and the same is hereby allowed.
I direct the accused-applicant to join the investigation and fully
cooperate with the investigation. In the event of the arrest of the
accused-applicant, he shall be released on anticipatory bail on his
furnishing a bond in the sum of Rs.50,000/-(Rupees Fifty Thousand
Only) with one solvent surety of like amount on following conditions
that he:
[A] shall
cooperate with the investigation and make himself available for
interrogation whenever required.
[B] shall
remain present before the Investigating Agency on 16thSeptember
2011 between 9 a.m. to 2 p.m.;
[C] shall
not hamper the investigation in any manner nor shall directly or
indirectly make any inducement, threat or promise to any witness so
as to dissuade them from disclosing such facts to the Court or to any
Police Officer;
[D] shall
at the time of execution of bond, furnish the address to the
Investigating Officer and the Court concerned and shall not change
the residence till the final disposal of the case or till further
orders;
[E]
will not leave India without the permission of the Court and, if is
holding a Passport, shall surrender the same before the trial Court
within a week;
It
would be open for the Investigating Agency to apply to the competent
Magistrate, for police remand of the applicant. The applicant shall
remain present before the learned Magistrate on the first date of
hearing of such application and on all subsequent occasions, as may
be directed by the learned Magistrate. This would be sufficient to
treat the accused in the judicial custody for the purpose of
entertaining application of the prosecution for police remand.
This is, however, without prejudice to the right of the accused to
seek stay against an order of remand, if ultimately granted, and the
power of the learned Magistrate to consider such a request in
accordance with law. It is clarified that the applicant, even if
remanded to the police custody upon completion of such period of
police remand, shall be set free immediately, subject to other
conditions of this anticipatory bail order.
It
goes without saying that any observations touching the merits of the
case, are purely for the purpose of deciding the question of grant
of bail and shall not be construed as an expression of the final
opinion in the main matter.
With
these directions, the Application is allowed. Rule is made absolute.
Direct Service is permitted.
(J.B.Pardiwala,
J.)
/Vahid
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