Mahendrabhai Amthabhai Desai Thro Pareshbhai Mahendrabhai Desai vs State Of Gujarat

Nikhil S. Kariel, J

Heard learned Sr. Advocate Mr.Yogesh Lakhani appearing with learned Advocate Mr.Rahul Dholakia on behalf of the applicant, learned Additional Public Prosecutor Mr.Ronak Raval on behalf of the respondent-State, and learned Advocate Mr.Salim Saiyed for the First Informant.

By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant – original accused prays for being released on anticipatory bail in connection with FIR No.11191027210338 of 2021 registered with Karaj Police Station, Ahmedabad City on 10.4.2021 for offences punishable under Sections 408, 409, 420, 465, 468, 471 of IPC.

Learned Sr. Advocate Mr.Lakhani for the applicant would submit that the applicant has not committed any offences as alleged in the FIR and he has been falsely implicated. Learned Sr. Advocate Mr. Lakhani would submit that no specific role has been attributed to the present applicant in the FIR. Learned Sr. Advocate would further submit that earlier in pursuance of a complaint filed by the First Informant against the present applicant, after thorough investigation, a closure report was already filed by the authority concerned. Learned Sr. Advocate for the applicant would submit that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail. Learned Sr. Advocate for the applicant on instructions states 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. Learned Advocate would further submit that upon filing of such application by the Investigating Agency, the right of applicant-accused to oppose such application on merits may be kept open.

This application has been vehemently opposed by learned Additional Public Prosecutor Mr. Raval appearing on behalf of the respondent-State, as well as learned Advocate Mr.Salim Saiyed for the First Informant who would submit that looking to the nature and gravity of the offence the applicant may not be released on anticipatory bail by this Court.

Having heard the learned Advocates for the parties and having perused the investigation papers, following aspects are taken into consideration by this Court:

That the first aspect that appears to this Court is that while the law, as it stands today, permits any person to register a cognizable offence, but at the same time, the present FIR is nothing but a gross abuse of the process of law, more particularly since it appears that a member of a rival Union has filed the FIR inter alia questioning the functioning of the Unions, in which the present applicant is either a President or a Senior Office bearer;

It also appears that the allegations are more or less with regard to administration and functioning of the Union concerned, and whereas in the considered opinion of this Court, it is for the concerned authorities or the members of such Union to have raised the issue with regard to any alleged misappropriation or any alleged abuse of power by the present applicant and whereas the present First Informant being a member of the rival Union, did not have any business to file the present FIR;

It also appears that the allegations made in the FIR in the year 2021 related back to the incidents, which had happened as far back as in the year 2010 and whereas allegations about the present applicant taking over as General Secretary of a Union after demise of his father, who was at the relevant point of time General Secretary, is also questioned. In the considered opinion of this Court, the said aspect was within the exclusive domain of either office bearers or members of the Union or the concerned Authorities to have raised and the said aspect was not within the purview of a member of a rival Union to raise, more particularly after a period of 11 years and in absence of the said aspect being questioned by anybody else concerned;

This Court has also taken into consideration the submission by the learned Sr. Advocate Mr.Lakhani that accounts of all the Unions in question have been regularly audited and whereas in none of the Audit Reports any financial misappropriation, more particularly to the tune of the amount as alleged in the FIR is coming out;

This Court has also considered the fact that the present applicant is stated to be a Senior Office Bearer of various Unions and Trusts and whereas the applicant does not have any antecedents of being involved in any criminal activity herein before.

Having regard to the circumstances noted above, and considering the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694, this Court is inclined to consider this application.

In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR No.11191027210338 of 2021 registered with Karaj Police Station, Ahmedabad City on 10.4.2021, the applicant shall be released on anticipatory bail on furnishing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one surety of like amount, on the following conditions that the applicant:

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

(b) shall remain present at the concerned Police Station on 2.08.2022 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 or till further orders;

(f) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week;

Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicant to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. 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.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.