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CR.MA/9130/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9130 of 2010
=========================================================
PRAKASHBHAI
NATHULAL THAKKAR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
YOGESH LAKHANI WITH MR PS GONDALIA FOR M/S S G ASSOCIATES
for
Applicant(s) : 1,
MR HL JANI ADDITIONAL PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 23/08/2010
ORAL
ORDER
This
Application is filed by the applicant under Section 438 Cr. P.C. in
connection with CR No. I 6 of 2004, registered with ACB Police
Station, Bhuj, District : Kutch for the offences under Section
120-B, 406, 409, 420, 455, 468, 471, 34, 114 and 201 of the Indian
Penal Code and Sections 7, 12, 13(1)(c)(d) and Section 13(2) of the
Prevention of Corruption Act.
Heard
learned Counsel for the parties and perused the papers produced
before me.
Learned
Senior Counsel Mr. Yogesh Lakhani has contended that the applicant
has been wrongly implicated in the commission of the offence. He is
an innocent person. Even the ingredients of the offence are not
satisfied. Learned Senior Counsel submitted that from the papers
itself, show that the lignite, which was sold and purchased to
licencee. For the date of the FIR and investigation time, the ACB is
unable to file charge-sheet. Even the officer has never bothered to
find out the accused. There is no any prima facie case made out
against the applicant. He further submitted that the Sales Tax
itself makes clear for penalty and prosecution for evasion of sale
tax. In view of the aforesaid submissions, he prayed to grant
anticipatory bail to the applicant.
Learned
APP Mr. Jani has vehemently opposed this application and he has read
allegation contained in the FIR at Pages 21, Para 11 and forcefully
submitted that this is a clear cut prima facie case against the
applicant and therefore, discretion may not be exercised in favour
of the applicant.
Having
heard the learned Counsel for the parties and perused the record and
considered the arguments advanced by the learned Counsel for the
parties. Even the case diary was called for, which is produced
before me and I have verified the same. It appears from the case
diary that the Investigating Officer has never bothered to find out
the accused for a period of more than 6 years. The Investigating
Officer has also never bothered to follow the procedure of the Code
of Criminal Procedure and it appears that the Investigating officer
has totally negligent and due to negligence on the part of the
Investigating Officer, the bail cannot be refused. Therefore, I am
of the opinion that this is a fit case to grant anticipatory bail to
the applicant.
In
the result, this Application is allowed by directing that in the
event of arrest of the applicant herein pursuant to CR No. I 6
of 2004 registered with ACB Police Station, Bhuj, District : Kutch,
the applicant shall be released on Bail on his furnishing a Bond of
Rs.10,000/- (Rupees ten thousand only) with one surety of like
amount on condition that –
a) he
shall co-operate with the investigation and make himself available
whenever required;
b) he
shall remain present before the concerned Police Station, on 30th
August, 2010 at 11.00 am sharp.
c) he
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 him for disclosing such facts to the Court or to
any Police Officer;
d) At
the time of execution of Bond, they shall furnish his address to the
I.O. and the Court concerned and shall not change the residence till
the final disposal of the case or till further orders;
e) that
he will not leave India without the permission of the Court and, if
they are holding a Passport, surrender the same before the trial
Court immediately;
f) It
would be open to the Investigating Officer to file an application for
remand, if he considers it just and proper and the concerned
Magistrate would decide it on merits;
g) this
order will be operative if the applicant is arrested at any time
within a period of 90 days;
h) within
a period of ten days from the date of arrest, the applicant shall
apply for regular bail which application shall be decided by the
competent Court in accordance with law without being influenced by
the fact that anticipatory bail was granted.
8. With
these directions, this Criminal Miscellaneous Application is disposed
of. Rule is made absolute. Direct service permitted.
(Z.K.SAIYED,
J.)
ynvyas
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