{"id":51467,"date":"2011-09-12T00:00:00","date_gmt":"2011-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/asim-vs-state-on-12-september-2011"},"modified":"2015-08-27T21:42:17","modified_gmt":"2015-08-27T16:12:17","slug":"asim-vs-state-on-12-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/asim-vs-state-on-12-september-2011","title":{"rendered":"Asim vs State on 12 September, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Asim vs State on 12 September, 2011<\/div>\n
Author: J.B.Pardiwala,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/9628\/2011\t 27\/ 27\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 9628 of 2011\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE J.B.PARDIWALA\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nASIM\nNIRANJAN CHAKRABORTY - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nP.M.THAKKAR,SR. ADVOCATE with MR.NAVIN K PAHWA\nfor\nApplicant(s) : 1, \nMR. R.C. KODEKAR, APP for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.B.PARDIWALA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 12\/09\/2011 \n\n \n\n \n \nCAV\nJUDGMENT \n<\/pre>\n
This
\n\tis an application preferred by the accused-applicant under Section
\n\t438 of the Criminal Procedure Code, (for short, ‘the Code’) in
\n\tconnection with offence registered with CID Crime, Rakot Zone Police
\n\tStation, vide C.R. No.I-9 of 2010 for the offences punishable under
\n\tSections 217, 409, 465, 467, 468, 471, 476 and 120(B) of the Indian
\n\tPenal Code.\n<\/p>\n
The
\n\tcase of the prosecution, in brief, can be summarized as under:-\n<\/p>\n
(i)
\nThe accused-applicant is serving with a Multinational Public Limited
\nCompany known and recognized as ‘Welspun Corporation Limited’, having
\nits registered office at Village Varshamedi, Taluka: Anjar, District:
\nKutch.  The accused-applicant is serving in the company in his
\ncapacity as Vice President. The Welspun group of companies, way back
\nin the year 2003, preferred applications for allotment of lands
\nbearing Survey Nos. 652, 692, 665, 667, 668, 670, 684, 692, 890 and
\nfew other survey numbers situated at village Varshamedi, Taluka:
\nAnjar, District: Kutch.  This demand for the allotment was on the
\nbasis of one resolution bearing No.JMN\/392003\/454\/A (R.D.) issued by
\nthe State of Gujarat dated 6th June 2003, simplifying the
\nprocess of allotment of Government land for industrial growth in the
\nDistrict of Kutch, which was severely affected by earthquake.\n<\/p>\n
For
\nthis purpose, a District Land Valuation Committee was constituted,
\nwhich comprises of the following persons:-\n<\/p>\n
(a)
\nDistrict Collector;\n<\/p>\n
(b)District
\nDevelopment Officer;\n<\/p>\n
(c)Deputy
\nTown Planner; and<\/p>\n
(d)Resident
\nDeputy Collector as Member Secretary.\n<\/p>\n
(ii)
\nIt is the case of the prosecution that the Company approached the
\nthen District Collector-original accused no.1 Mr.Pradeep N.Sharma.
\nThe said Mr.Pradeep Sharma, abusing his position and power as a
\nCollector and with a sole motive to favour the Company and thereby
\nderive monetary gain for himself, made many more allotments in favour
\nof the Company, admeasuring lands upto 1,74,014 sq. meters in gross
\nviolation of the resolution of the State of Gujarat dated 6th
\nJune 2003, which empowers the Collector to allot only upto two
\nhectares of land i.e. 20,000 sq. meters.\n<\/p>\n
(iii)
\nIt is the case of the prosecution that as a part of criminal
\nconspiracy huge parcels of land were alloted in favour of the Welspun
\nGroup of Companies at a very meager price of Rs.15.00 per sq. meter.
\nIt is also the case of the prosecution that when subsequently other
\nproposals for allotment of lands were forwarded to the State
\nGovernment, the allotments were made at the rate of Rs.78.00 per sq.
\nmeter, as according to the case of the prosecution, the correct rate
\nwas Rs.78.00 and not Rs.15.00.\n<\/p>\n
(iv)
\nIt is the case of the prosecution that the Company, in collusion with
\noriginal accused no.1, the then District Collector and other
\nco-accused, by adopting corrupt practices, are responsible for
\ncausing loss to the public exchequer and revenue to the tune of
\nRs.1,04,61,622.00 and loss of stamp duty to the tune of
\nRs.15,69,240.00.\n<\/p>\n
(v)
\nIt is also the case of the prosecution that in the year 2004, the
\noriginal accused no.1, the then District Collector had obtained a
\nmobile sim card bearing No.9925199799 in the name of the present
\naccused-applicant. This mobile was recovered from the possession of
\nthe original accused no.1, the then District Collector and the record
\nindicates that the bill amount of the mobile was being paid by the
\ncompany.  For the period between 2004 till 2009, the mobile was used
\nby the original accused no.1, the then District Collector and the
\ntotal aggregate amount towards the bill to the tune of Rs.2,24,036.00
\nwas paid by the company.\n<\/p>\n
(vi)
\nIt deserves to be noted that the offence, which is alleged to have
\nbeen committed by the applicant-accused is of the year 2004.
\nHowever, it is the case of the prosecution that the offence could be
\nunearthed only in the year 2010.  It is also the case of the
\nprosecution that, the then District Collector, Mr.Pradeep N.Sharma,
\nnot only favoured the Welspun Group of Companies but many other
\npersons including other companies by indulging himself in corrupt
\npractices.\n<\/p>\n
(vii)
\nThe original accused no.1, the then District Collector, Mr.Pradeep
\nN.Sharma was first to be arrested and as on today, about five
\nprosecutions have been instituted against original accused no.1,
\nMr.Pradeep N. Sharma.\n<\/p>\n
(viii)
\nThis Court considered regular bail application of original accused
\nno.1, the then District Collector, Mr.Pradeep N.Sharma in connection
\nwith the offence registered with CID Crime, Rajkot Zone Police
\nStation vide C.R. No.I-9 of 2010. This Court vide order dated 22th
\nJune 2011, rejected the regular bail application of original accused
\nno.1.  While rejecting the regular bail application of original
\naccused no.1, this Court observed as under:-\n<\/p>\n
“However,
\nwith everything I have observed, I would be failing in my duty if I
\nignore or avoid to place the following facts on the record of this
\norder :-\n<\/p>\n
Prosecution
\n\tcase is very clear. According to the prosecution, a conspiracy was
\n\thatched and as a part of the conspiracy, the accused-applicant
\n\tpassed certain orders of allotment of lands in favour of the
\n\tCompany. It is but obvious that the accused-applicant would not,
\n\tjust for the sake of obliging the Company, must have passed the
\n\torders of allotment. The question which is haunting the mind of this
\n\tCourt is as to why no action has been taken against the Company in
\n\twhose favour the parcels of lands came to be allotted and that too
\n\thuge parcels of lands. If conspiracy is alleged then, why the
\n\tCompany is not an accused or no person from the Company has been
\n\tmade an accused. Investigation is over, charge-sheet is filed. Is it
\n\tthe case that during the entire course o0f investigation the
\n\tprosecution was unable to find any evidence against the Company or
\n\tany responsible person of the Company who could be a part and parcel
\n\tof the conspiracy as alleged. This question has not been
\n\tsatisfactorily answered.\n<\/p>\n
If
\n\tthe State is so much concerned about the loss of public exchequer or
\n\trevenue, then why till this date no concrete steps have been taken
\n\tto recall the orders of allotment of lands. It is true that now the
\n\tCompany is having a huge manufacturing unit, but still if the
\n\tearlier allotments are illegal and are said to have been obtained by
\n\tplaying fraud and by commission of offence, then the State can
\n\tdefinitely initiate appropriate steps in this regard.\n<\/p>\n
As
\non today, nothing concrete is coming forth on record to even, prima
\nfacie, suggest that the State Government has taken any action in this
\nregard against the Company.”\n<\/p>\n
\tThis
\nCourt also observed as under:-\n<\/p>\n
“I
\nwould have leaned in exercising my discretion in favour of the
\naccused – applicant even while accepting the case of the
\nprosecution, prima facie. However, I cannot ignore the fact that the
\naccused – applicant is facing as many as five prosecutions as
\non today. Had it been one solitary case or one solitary prosecution,
\nthe prayer for bail could have been considered. In one of the
\nprosecutions, the accused – applicant has been ordered to be
\nenlarged on bail by the Hon’ble Supreme Court, but at that relevant
\npoint of time, that was the only case registered against the accused\n<\/p>\n
– applican except one prosecution for the offences punishable
\nunder the Prevention of Corruption Act, 1988 wherein, till this date,
\nthe accused – applicant has not been arrested.”\n<\/p>\n
It
\n\tappears that the State has now decided to proceed against the
\n\tCompany alleged to have received undue favours at the hands of
\n\toriginal accused no.1 in so far as allotment of lands is concerned.\n<\/p>\n
Apprehending
\n\tarrest at the hands of CID Crime, Rakot Zone Police Station, the
\n\taccused-applicant herein preferred Criminal Misc. Application No.245
\n\tof 2011 in the Court of Sessions Judge, Bhuj.  The learned 3rd
\n\tAdditional Sessions Judge, Kutch-Bhuj vide order dated 30th
\n\tJune 2011, rejected the bail application. It is at that stage that
\n\tthe accused-applicant preferred present application praying for
\n\tanticipatory bail.\n<\/p>\n
I
\n\thave heard learned senior counsel Mr.P.M.Thakkar appearing with
\n\tMr.Navin K.Pahwa for the accused-applicant and learned APP, Mr.R.C.
\n\tKodekar for the State.\n<\/p>\n
Learned
\n\tcounsel appearing on behalf of the accused-applicant put forward the
\n\tfollowing contentions:-\n<\/p>\n
(a)
\nThe incident in question has taken place in the year 2004. The FIR is
\nfiled after a period of 6 years. The delay of 6 years in filing the
\nFIR is indicative of the fact that the same is filed with oblique and
\nulterior motive.\n<\/p>\n
(b)
\nThe accused – applicant is an employee of the Company. The
\naccused – applicant is a Civil Engineer and is in the company
\nengaged as technical expert. No vicarious liability can be fastened
\nin the criminal cases.\n<\/p>\n
(c)
\nThe accused – applicant has no past history or antecedents.\n<\/p>\n
(d)
\nThe allotment of the land is made by the authorities in favour of the
\ncompanies for the purpose of industrial activities. The companies
\npurchased the land at more than the market price.\n<\/p>\n
(e)
\nThe companies purchased about 1800 acres of land on which about 5
\nindustrial units are established. The average mean price paid by the
\ncompanies is only Rs.6\/- per sq.meter as against that, the companies
\nhave paid Rs.15\/- to Rs.18\/- per sq.meter in respect of 40 acres of
\nland which is the subject matter of the FIR.\n<\/p>\n
(f)
\nThe total investment made by the companies is about 4327 crores. The
\nState Government and the Central Government has given incentives of
\nabout 21276 crores. The annual turn over of the company is about 4547
\ncrores. These companies are the largest employers in the region and
\nemploying about 15000 direct or indirect employees.\n<\/p>\n
(g)
\nThe allotment of the land has become final in the year 2004 and no
\nchallenge is ever made. The companies are allowed to put the
\nconstruction of the industrial units and they have also become
\noperational.\n<\/p>\n
(h)
\nThe accused – applicant is not a public servant, there was no
\nentrustment of property in the capacity of public servant. No offence
\nunder Section 409 of IPC is made out against the accused –
\napplicant.\n<\/p>\n
(i)
\nThe accused – applicant has not made any forged document for
\nthe purpose of cheating.\n<\/p>\n
(j)
\nThe accused – applicant has not used any ingenuine document as
\ngenuine document despite it knowingly to be ingenuine.\n<\/p>\n
(k)
\nThe accused – applicant is sought to be involved in the
\noffences which are triable by the learned Judicial Magistrate, First
\nClass.\n<\/p>\n
(l)
\nThe accused – applicant is serving at the address mentioned in
\nthe memo of the petition and staying at Bhuj. The accused –
\napplicant was called by the Investigating Officer, statement was
\nrecorded and has fully cooperated in the investigation.\n<\/p>\n
(m)
\nThe learned counsel also submitted that the learned Sessions Judge
\nhas incorrectly stated in para 13 of the judgment that the accused –
\napplicant is shown in the second column of charge sheet. It is
\nsubmitted that the accused – applicant is permanently serving
\nat the address stated in the memo of the petition and staying at
\nBhuj-Kutch. The accused – applicant was called by the
\nInvestigating  Officer and the accused – applicant remained
\npresent before him at Gandhinagar, Rajkot and Bhuj on several
\noccasions where his statements were also recorded. The accused –
\napplicant has visited the police station and has fully cooperated in
\nthe process of investigation. In view of this, the accused –
\napplicant may kindly be released on anticipatory bail.\n<\/p>\n
The
\n\tlearned counsel has drawn my attention to a chart which has been
\n\tprepared to indicate that the accused-applicant is fully cooperating
\n\twith the investigation and has remained present before the concerned
\n\tInvestigating Agency from time to time.\n<\/p>\n
Sr.No.\n<\/p>\n
Received
\n\t\t\tDate<\/p>\n
Message<\/p>\n
Particulars<\/p>\n
Place<\/p>\n
Reply
\n\t\t\tDate<\/p>\n
1.<\/p>\n
12.8.2010<\/p>\n
To
\n\t\t\tremain present<\/p>\n
Accountant
\n\t\t\twith Details<\/p>\n
CID
\n\t\t\tCrime, Gandhinagar<\/p>\n
–\n<\/p>\n
2.<\/p>\n
4.12.2010<\/p>\n
For
\n\t\t\tinformation<\/p>\n
Memorandum
\n\t\t\tof Articles – all three unit <\/p>\n
CID
\n\t\t\tCrime, Rajkot<\/p>\n
6.12.2010<\/p>\n
3.<\/p>\n
27.12.2010<\/p>\n
For
\n\t\t\tinformation<\/p>\n
Details
\n\t\t\tof (1) Mahendra Rajguru and (2) Arvind Agrawal<\/p>\n
CID
\n\t\t\tCrime, Rajkot<\/p>\n
28.12.2010<\/p>\n
4.<\/p>\n
5.2.2011<\/p>\n
For
\n\t\t\tinformation<\/p>\n
Details
\n\t\t\tof project in charge at 2004 and his appointment order<\/p>\n
CID
\n\t\t\tCrime, Gandhinagar<\/p>\n
12.2.2011<\/p>\n
5.<\/p>\n
12.2.2011<\/p>\n
For
\n\t\t\tinformation<\/p>\n
Details
\n\t\t\tof all unit<\/p>\n
CID
\n\t\t\tCrime, Gandhinagar<\/p>\n
15.2.2011<\/p>\n
6.<\/p>\n
8.3.2011<\/p>\n
For
\n\t\t\tinformation<\/p>\n
Power
\n\t\t\tof attorney of A.K.C.\/Rajguru\/ A.Agrawal<\/p>\n
CID
\n\t\t\tCrime, Rajkot<\/p>\n
9.3.2011<\/p>\n
7.<\/p>\n
14.3.2011<\/p>\n
For
\n\t\t\tinformation<\/p>\n
Details
\n\t\t\tof A.K.C.\n<\/p>\n
CID
\n\t\t\tCrime, Rajkot<\/p>\n
16.3.2011<\/p>\n
8.<\/p>\n
23.7.2011<\/p>\n
To
\n\t\t\tremain present<\/p>\n
A.K.C.\n<\/p>\n
\t\t\tat Gandhinagar on 8.7.2011<\/p>\n
CID
\n\t\t\tCrime, Gandhinagar<\/p>\n
–\n<\/p>\n
9.<\/p>\n
14.5.2010<\/p>\n
To
\n\t\t\tremain present<\/p>\n
A.K.C.\n<\/p>\n
\t\t\tat Gandhinagar<\/p>\n
CID
\n\t\t\tCrime<\/p>\n
–\n<\/p>\n
10.<\/p>\n
22.9.2010<\/p>\n
To
\n\t\t\tremain present<\/p>\n
A.K.C.\n<\/p>\n
\t\t\tat Gandhinagar<\/p>\n
CID
\n\t\t\tCrime<\/p>\n
–\n<\/p>\n
11.<\/p>\n
6.2.2011<\/p>\n
Information<\/p>\n
Information
\n\t\t\tof land applications filed by the company<\/p>\n
CID
\n\t\t\tCrime<\/p>\n
–\n<\/p>\n
Per
\n\tcontra, learned APP Mr.Kodekar appearing on behalf of the State
\n\tsubmitted that at the relevant point of time when the Company was
\n\talloted land at a meager price of Rs.15.00 by the Committee headed
\n\tby the original accused no.1, the then District Collector, the
\n\taccused-applicant herein was looking after the affairs at
\n\tKutch-Bhuj, where the Company was desirous of putting up industrial
\n\tplant. Learned APP further submitted that though the
\n\taccused-applicant is a paid employee of the Company, still there is
\n\tmaterial to show that he was in touch with the then District
\n\tCollector i.e. original accused no.1, all the time till the orders
\n\tof allotments were passed.  Learned APP further submitted that a sim
\n\tcard in the name of the accused-applicant was being used by original
\n\taccused no.1, the then District Collector and the bill amount was
\n\talso being paid by the Company, which is indicative and suggestive
\n\tof the fact that the Company did receive undue favour from original
\n\taccused no.1, who, in his capacity as public servant, adopted
\n\tcorrupt practices.  Learned APP, therefore, submitted that since
\n\tthere is a prima-facie case against the accused-applicant, this
\n\tCourt may not exercise discretion in favour of the
\n\taccused-applicant.  The learned APP further submitted that custodial
\n\tinterrogation is necessary taking into consideration the peculiar
\n\tfacts and circumstances of the case. An affidavit-in-reply has also
\n\tbeen filed by the Police Inspector, CID Crime, Bhuj.  It is not
\n\tnecessary to reproduce the entire affidavit-in-reply, but it would
\n\tbe expedient to quote paragraphs 8,9,10,11 and 12 of the
\n\taffidavit-in-reply, which read as under:-\n<\/p>\n
“8.\n<\/p>\n
It is further respectfully submitted that from item No.5 to 9 of the
\naforesaid mentioned chart, it clearly shows the active participation
\nof the present petitioner in fixing the rate of Rs.15.00 per sq.meter
\nwithout even calling for the District Land Valuation Committee.\n<\/p>\n
9.
\nIt is further case of the investigating agency that so far as
\nmaterials collected by the investigating agency against the present
\npetitioner herein is that the SIM Card bearing Mobile No.9925199799
\nwas in the name of Shri Asim Niranjan Chakraborty i.e. petitioner
\nherein given by company. The said mobile with SIM Card was utilised
\nby the accused no.1 from the year 2004 to 2009 and the bill incurred
\nthereon of Rs.2,24,036.00 (Rupees two lacs twenty four thousand
\nthirty six only) was paid by Welspun India Limited. The separate
\noffence has been registered against accused no.1 being C.R. No.I-3 of
\n2010. Another material collected by the investigating agency against
\nthe petitioner herein is to facilitate providing the contract of
\ncorrugated boxes to the company in the name and style of M\/S.Value
\nPackaging Factory in which wife of the accused no.1 Mrs.Shyamal
\nPradeepkumar Sharma was 30% partner. By awarding this contract to the
\nwife of accused no.1 the favour was obtained by the company for
\nillegal gain. This role of the petitioner is causing huge loss of
\npublic exchequer to the tune of Rs.1,20,30,824 (Rupees one crore
\ntwenty lacs thirty thousand eight hundred twenty four only) by way of
\ncollusion with accused no.1 in order to gain the economic profit for
\nhis company.\n<\/p>\n
10.
\nIt is further respectfully submitted that during the course of
\ninvestigation in the present offence, the petitioner was examined as
\nwitness on 9th March 2011. It is relevant to note over
\nhere at this stage that after examining other witnesses and material
\ncollected during the course of investigation my predecessor has
\nsought for permission to arrest the petitioner herein vide letter
\ndated 31st March 2011 and the superior officers has
\ngranted the permission of arrest vide his order dated 30th
\nJuly 2011.\n<\/p>\n
11.
\nIt is further submitted that the investigating agency has tried to
\ntrace him on the given addresses at Vadodara and Anjar, but the
\npetitioner herein could not be found and hence it is not correct to
\nsay that the petitioner herein has cooperated with the investigating
\nagency.\n<\/p>\n
12.
\nLooking to the nature and gravity as well as wide spectrum of the
\noffence which has directly bearing upon the public life, custodial
\ninterrogation by the investigating agency is essential for eliciting
\nthe truth. Hence, in the interest of justice, no interference is
\ncalled for utilizing discretion in favour of the petitioner herein;
\nhence this petition deserves to be dismissed.”\n<\/p>\n
In
\n\trejoinder, learned Senior Counsel submitted that the sim card
\n\tbearing Mobile No.9925199799 was not in the name of the petitioner.
\n\tThe sim card was issued by Vodafone, a mobile company, in the name
\n\tof the Company. The sim card was part of the close user group (CUG).
\n\tThe bills which were raised on such sim card number are also paid by
\n\tthe Company. The mention of the name of the accused –
\n\tapplicant after the name of the Company is only for the account
\n\tpurpose as name of some employee is required to be given for getting
\n\tbenefit of CUG. It is stated that the sim card is never allotted or
\n\tused by the accused – applicant.\n<\/p>\n
Having
\n\theard learned counsel appearing on behalf of the accused-applicant
\n\tand learned APP, appearing on behalf of the State, I shall now
\n\tproceed to consider whether discretion can be exercised in favour of
\n\tthe accused-applicant or not.\n<\/p>\n
The
\n\tHon’ble Supreme Court in the recent pronouncement has made the
\n\tposition of law very clear so far as Section 438 of the Code is
\n\tconcerned. In the case of Siddharam Satlingappa Mhetre Vs. State
\n\tof Maharashtra & Ors., reported in (2011) 1 Supreme Court
\n\tCases 694, the Supreme Court has held as under:\n<\/p>\n
93.It
\n\tis a matter of common knowledge that a large number of undertrials
\n\tare languishing in jail for a long time even for allegedly
\n\tcommitting very minor offences.  This is because section 438 Cr.P.C.
\n\thas not been allowed its full play.  The Constitution Bench in
\n\tSibbia’s case (supra) clearly mentioned that section 438 Cr.P.C. is
\n\textraordinary because it was incorporated in the Code of Criminal
\n\tProcedure, 1973 and before that other provisions for grant of bail
\n\twere sections 437 and 439 Cr.P.C.  It is not extraordinary in the
\n\tsense that it should be invoked only in exceptional or rare cases.
\n\tSome courts of smaller strength have erroneously observed that
\n\tsection 438 Cr.P.C. should be invoked only in exceptional or rare
\n\tcases. Those orders are contrary
\n\tto th law laid down by the judgment of the Constitution Bench in
\n\tSibbia’s case (supra).  According to the report of the National
\n\tPolice Commission, the power of arrest is grossly abused and clearly
\n\tviolates the personal liberty of the people, as enshrined under
\n\tArticle 21 of the Constitution, then the courts need to take serious
\n\tnotice of it.  When conviction rate is admittedly less than 10%,
\n\tthen the police should be slow in arresting the accused.  The courts
\n\tconsidering the bail application should try to maintain fine balance
\n\tbetween the societal interest vis-a-vis personal liberty while
\n\tadhering to the fundamental principles of criminal jurisprudence
\n\tthat the accused is presumed to be innocent till he is found guilty
\n\tby the competent court.\n<\/p>\n
95.The
\n\tgravity of charge and exact role of the accused must be properly
\n\tcomprehended. Before arrest, the arresting officer must record the
\n\tvalid reasons which have led to th arrest of the accused in the case
\n\tdiary. In exceptional cases the reasons could be recorded
\n\timmediately after the arrest, so that while dealing with the bail
\n\tapplication, the remarks and observations of the arresting officer
\n\tcan also be properly evaluated by the court.\n<\/p>\n
96.It
\n\tis imperative for the courts to carefully
\n\tand with meticulous precision evaluate the facts of the case.  The
\n\tdirection must be exercised on the basi of the available material
\n\tand the facts of the particulars case.  In cases, where the court is
\n\tof the considered view that the accused has joined investigation and
\n\the is fully cooperating with the investigating agency and is not
\n\tlikely to abscond, in that event,custodial interrogation should be
\n\tavoided.\n<\/p>\n
97.
\n\tA great ignominy, humiliation and disgrace is attached to the
\n\tarrest.  Arrest leads to many serious consequences not only for the
\n\taccused but for the entire family and at times for the entire
\n\tcommunity.  Most people do not make any distinction between arrest
\n\tat a pre-conviction stage or post-conviction stage.  Whether the
\n\tpowers under section 438 Cr.P.C. are subject to limitation of
\n\tsection 437 Cr.P.C.?\n<\/p>\n
98.The
\n\tquestion which arises for consideration is whether the powers under
\n\tsection 438 Cr.P.C. are unguided or uncanalised or Constitution
\n\tBench in Sibbia’s case (supra) has clearly observed that there is no
\n\tjstification for reading into section 438 Cr.P.C. and the
\n\tlimitations mentioned in section 437 Cr.P.C..  The Court further
\n\tobserved that the plentitude of the section
\n\tmust be given its full play.  The Constitution Bench has also
\n\tobserved that the High Court is not right in observing that the
\n\taccused must make out a “special case” for the exercise
\n\tof the power to grant anticipatory bail.  This virtually, reduces
\n\tthe salutary power conferred by section 438 Cr.P.C. to a dead
\n\tletter.  The Court observed that “We do not see why the
\n\tprovisions of Section 438 Cr.P.C. should be suspected as containing
\n\tsomething volatile or incendiary, which needs to be handled with the
\n\tgreatest care and caution imaginable.”\n<\/p>\n
122.
\n\tThe following factors and parameters can be taken into consideration
\n\twhile dealing with the anticipatory bail:\n<\/p>\n
i.\n<\/p>\n
 The nature and gravity of the accusation and the exact role of the
\naccused must be properly comprehended before arrest is made;\n<\/p>\n
ii.\n<\/p>\n
The antecedents of the applicant including the fact as to whether the
\naccused has previously undergone imprisonment on conviction by a
\nCourt in respect of any cognizable offence;\n<\/p>\n
iii.\n<\/p>\n
The possibility of the applicant to flee from justice;\n<\/p>\n
iv.\n<\/p>\n
The possibility of the accused’s likelihood to repeat similar or the
\nother offences.\n<\/p>\n
v.\n<\/p>\n
 Where the accusations have been made only with the object of
\ninjuring or humiliating the applicant by arresting him or her.\n<\/p>\n
vi.\n<\/p>\n
Impact of grant of anticipatory bail particularly in cases of large
\nmagnitude affecting a very large number of people.\n<\/p>\n
vii.\n<\/p>\n
The courts must evaluate the entire available material against the
\naccused very carefully. The court must also clearly comprehend the
\nexact role of the accused in the case. The cases in which accused is
\nimplicated with the help of sections 34 and 149 of the Indian Penal
\nCode, the court should consider with even greater care and caution
\nbecause over implication in the cases is a matter of common knowledge
\nand concern;\n<\/p>\n
viii.\n<\/p>\n
While considering the prayer for grant of anticipatory bail, a
\nbalance has to be struck between two factors namely, no prejudice
\nshould be caused to the free, fair and full investigation and there
\nshould be prevention of harassment, humiliation and unjustified
\ndetention of the accused;\n<\/p>\n
ix.\n<\/p>\n
The court to consider reasonable apprehension of tampering of the
\nwitness or apprehension of threat  to the complainant;\n<\/p>\n
x.\n<\/p>\n
  Frivolity in prosecution should always be considered and it is only
\nthe element of genuineness that shall have to be considered in the
\nmatter of grant of bail and in the event of there  being some doubt
\nas to the genuineness of the prosecution, in the normal course of
\nevents, the accused is entitled to an order of bail.”\n<\/p>\n
\tIt
\n\tis not in dispute that this Court rejected regular bail application
\n\tof original accused no.1, the then District Collector Mr.Pradeep N.
\n\tSharma by a very exhaustive order dated 22nd June 2011.
\n\tWhile deciding the regular bail application of original accused
\n\tno.1, this Court wondered as to why no action has been taken against
\n\tthe Company. It appears that the Investigating Agency from August
\n\t2010 onwards started interrogating the accused-applicant herein.  It
\n\talso appears that for number of times, the accused-applicant had
\n\tappeared before the Investigating Agency and appears to have adduced
\n\tthe necessary information and material to facilitate the
\n\tinvestigation.  The investigation got completed and charge-sheet
\n\talso came to be filed against original accused no.1 and few other
\n\tco-accused. However, even at that point of time, the Investigating
\n\tAgency did not deem fit to file charge-sheet against the present the
\n\taccused-applicant. However, the fact remains that the entire
\n\tinvestigation is over.  The only formality, which now needs to be
\n\tcompleted, is to file charge-sheet against the accused-applicant
\n\tafter showing his formal arrest.  At this stage, I do not propose to
\n\tgo into the merits or demerits of the prosecution case against the
\n\taccused-applicant and it is not desirable in view of the fact that,
\n\tit will be for the trial Court to pronounce judgment on the merits
\n\tof the evidence but, it is necessary to say this much to make it
\n\tclear that, I have taken into consideration the guiding principles
\n\tlaid down by the Apex Court in the case of Siddharam Stalingappa
\n\tMhetre (supra) so far as grant of anticipatory bail is concerned and
\n\tthe following guiding principles which are as under:-\n<\/p>\n
Whether
\n\treleasing the accused on bail is in any way forbidden by any
\n\tstatutory provision ?\n<\/p>\n
Whether
\n\the would intimidate the witnesses or win over them for getting
\n\tsupport to his defence and\/or for abstaining from supporting the
\n\tprosecution ?\n<\/p>\n
Whether
\n\the would be available easily at the time of his trial and would
\n\tsubmit to the custody if convicted and sentenced at last or would
\n\tflee and would not be available ?\n<\/p>\n
Whether
\n\the would tamper with the evidence ?\n<\/p>\n
Whether
\n\the would commit like-wise or any other offence or wrong directly or
\n\tindirectly remaining behind curtain ?\n<\/p>\n
Whether
\n\the would be retributive or revengeful or retaliative, i.e. whether
\n\this release will endanger safety of the persons, viz. Complainant
\n\tand witness or other concerned or property ?\n<\/p>\n
Whether
\n\this own safety is likely to be endangered ?\n<\/p>\n
Whether
\n\tlarger good, national interest, social order, national security,
\n\tpublic safety and\/or health are likely to be jeopardised ?\n<\/p>\n
The
\n\tnature and gravity of offence being shocking and alarming or
\n\tbarbaric and day in and day out its effect spreads panic amongst the
\n\tpeople or section of the people or damages civilization in the
\n\tsociety turning back to jungle law ?\n<\/p>\n
Other
\n\tpeculiar circumstances of each case appearing on record, dictating
\n\tthe exercise of discretion in particular way.\n<\/p>\n
Taking
\n\tinto consideration the fact that the accused-applicant is a paid
\n\temployee working as a Vice President of Welspun Corporation Ltd. and
\n\tmost importantly taking into consideration the fact that he has
\n\tcooperated with the investigation so far and has fully agreed to
\n\tcooperate further and join the investigation, I am of the view, as
\n\theld by the Apex Court in the case of  Siddharam Stalingappa Mhetre
\n\t(Supra), that custodial interrogation should be avoided.\n<\/p>\n
\tI
\n\tam of the view that practically now nothing  is to be investigated
\n\tin the matter.  The investigation is over long time back and
\n\tcharge-sheets have been filed against the respective other
\n\tco-accused.  However, at the relevant point of time, the
\n\tInvestigating Agency did not deem fit to arraign the
\n\taccused-applicant as one of the accused. Even, while  rejecting the
\n\tregular bail application of the accused-applicant, I have observed
\n\tas stated in the earlier part of this order that, I would have
\n\tleaned in exercising my discretion in favour of original accused
\n\tno.1 also even while accepting case of the prosecution prima-facie.
\n\tBut, for the fact that original accused no.1, in his capacity as a
\n\tpublic servant, is now facing not less than five prosecutions and
\n\tthere was prime evidence to come to the conclusion that, he would
\n\thave absconded. I have considered this  aspect very exhaustively in
\n\tthe order dated 22nd June 2011 passed in Criminal Misc.
\n\tApplication No.3934 of 2011.\n<\/p>\n
In
\n\tthe present case, the accused-applicant is aged about 55 years.  He
\n\tis serving with Welspun Corporation Ltd.  past couple of years.  He
\n\thas cooperated with the investigation so far and has also undertaken
\n\tto further cooperate and join the investigation, if necessary.  He
\n\thas his own roots in the society and also a family.  Therefore,
\n\tthere is no apprehension of accused-applicant absconding or fleeing
\n\tfrom justice.  The offences otherwise also are triable by a
\n\tmagistrate and the entire prosecution case is based on documentary
\n\tevidence.\n<\/p>\n
In
\n\tthe above view of the matter, I am of the opinion that though there
\n\tmay be a prima-facie case against the accused-applicant, still
\n\tdiscretion can be exercised in favour of the accused-applicant
\n\tkeeping in mind the factors and parameters as laid down by the Apex
\n\tCourt in the case of Siddharam Satlingappa Mhetre (supra) and also
\n\ttaking into consideration the fact that custodial interrogation is
\n\tnot necessary.\n<\/p>\n
In
\n\tthe result, the Application succeeds and the same is hereby allowed.
\n\t I direct the accused-applicant to join the investigation and fully
\n\tcooperate with the investigation.  In the event of the arrest of the
\n\taccused-applicant, he shall be released on anticipatory bail on his
\n\tfurnishing a bond in the sum of Rs.50,000\/-(Rupees Fifty Thousand
\n\tOnly) with one solvent surety of like amount on following conditions
\n\tthat he:\n<\/p>\n
[A]\tshall
\ncooperate with the investigation and make himself available for
\ninterrogation whenever required.\n<\/p>\n
[B]\tshall
\nremain present before the Investigating Agency on 16thSeptember
\n2011 between 9 a.m. to 2 p.m.;\n<\/p>\n
[C]\tshall
\nnot hamper the investigation in any manner nor shall directly or
\nindirectly make any inducement, threat or promise to any witness so
\nas to dissuade them from disclosing such facts to the Court or to any
\nPolice Officer;\n<\/p>\n
[D]\tshall
\nat the time of execution of bond, furnish the address to the
\nInvestigating Officer and the Court concerned and shall not change
\nthe residence till the final disposal of the case or till further
\norders;\n<\/p>\n
[E]
\n\twill not leave India without the permission of the Court and, if is
\nholding a Passport, shall surrender the same before the trial Court
\nwithin a week;\n<\/p>\n
It
\n\twould be open for the Investigating Agency to apply to the competent
\n\tMagistrate, for police remand of the applicant. The applicant shall
\n\tremain present before the learned Magistrate on the first date of
\n\thearing of such application and on all subsequent occasions, as may
\n\tbe directed by the learned Magistrate.  This would be sufficient to
\n\ttreat the accused in the judicial custody for the purpose of
\n\tentertaining application of the prosecution for police remand.
\n\tThis is, however, without prejudice to the right of the accused to
\n\tseek stay against an order of remand, if ultimately granted, and the
\n\tpower of the learned Magistrate to consider such a request in
\n\taccordance with law. It is clarified that the applicant, even if
\n\tremanded to the police custody upon completion of such period of
\n\tpolice remand, shall be set free immediately, subject to other
\n\tconditions of this anticipatory bail order.\n<\/p>\n
It
\n\tgoes without saying that any observations touching the merits of the
\n\tcase, are purely for the purpose of deciding the question of grant
\n\tof bail and shall not be construed as an expression of the final
\n\topinion in the main matter.\n<\/p>\n
With
\n\tthese directions, the Application is allowed. Rule is made absolute.
\n\t Direct Service is permitted.\n<\/p>\n
(J.B.Pardiwala,
\nJ.)<\/p>\n
\/Vahid<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Asim vs State on 12 September, 2011 Author: J.B.Pardiwala, Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-51467","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAsim vs State on 12 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/asim-vs-state-on-12-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Asim vs State on 12 September, 2011 - 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