Jesabhai Mangabhai Shiyal vs State Of Gujarat

A.S. Supehia, J

Heard the learned advocates for the respective parties.

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in connection with the FIR being C.R.No.4 of 2021 registered with A.C.B. Police Station, District Bhavnagar for the offences under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988.

It is the case of the prosecution that on 10.08.2017, the first informant was passing through Khuntwada road with the truck loaded with the sand and at that time, the applicant stopped the truck and asked for the royalty pass, which was expired hence, he asked for sum of Rs.5,000/-as an illegal gratification and also had conversation with the owner of the truck through the mobile number of the first informant and demanded the amount and as the first informant did not want to pay therefore, the trap was organized on 12.08.2017. On that day, the trap was organized by the raiding officer on receipt of the information through the driver of the truck. It is alleged that the first informant on that day had called the applicant and had subjective conversation with regard to the payment of the amount and the applicant and the first informant were about to meet at a particular point and the amount was to be handed over to the applicant but the applicant did not turn up and the amount was not accepted by him as he was not there at the decided destination as per the conversation and, therefore, the trap was registered as unsuccessful trap.

Learned advocate for the applicant has submitted that the impugned F.I.R. registered on 09.12.2021, whereas the date of alleged incident is 10.08.2017. It is submitted that the inventory of the assets was done by the Investigating Officer with regard to the property possessed by the applicant and it was found that the applicant was possessing the asset of sum of Rs.9,59,562/-in total during his service of 13 years. He has submitted that the date of conducting raid was 12.08.2017 and the raid was noted as an unsuccessful. He has submitted that in the F.I.R., it is stated that there was subjective talk between the applicant and the first informant and there is no demand of any illegal gratification of sum of Rs.5,000/- as stated by the first informant.

4.1 Learned advocate for the applicant submitted that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. He further submitted that the applicant will keep himself available during the course of investigation, as well as trial also and will not flee from justice.

4.2 Learned advocate for the applicant, on instructions, submitted that the applicant is ready and willing to abide by all the conditions, including imposition of conditions with regard to powers of investigating agency to file an application before the competent Court for his remand. He further submitted that upon filing of such application by the investigating agency, the right of the applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted bail.

On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent–State has opposed grant of bail looking to the nature and gravity of the offence.

Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant bail to the applicant.

This Court has considered following aspects;

(a) that there is huge delay of four years in registering the F.I.R.;

(b) that the alleged raid/trap was noted as an unsuccessful;

(c) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary at this stage;

Looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant.

This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi) , AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312.

In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with FIR being C.R.No.4 of 2021 registered with A.C.B. Police Station, District Bhavnagar on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he :

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 19.04.2022 between 11.00 a.m. and 2.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week.

Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide if on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the 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 concerned 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 bail order.

At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

Learned advocate for the applicant is also permitted to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.