Dhirajlal Harishankar Trivedi vs State Of Gujarat
2021 Latest Caselaw 18727 Guj

      R/CR.MA/9852/2021                                      ORDER DATED: 24/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 9852 of 2021

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                          DHIRAJLAL HARISHANKAR TRIVEDI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR MEHUL H RATHOD(701) for the Applicant(s) No. 1
MR MONIL R SHAH(10704) for the Applicant(s) No. 1
MS. MONALI BHATT, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                  Date : 24/12/2021

                                    ORAL ORDER

1. Heard learned Advocate Mr. Mehul H. Rahot for the Applicant and learned APP Ms. Monali Bhatt for the Respondent - State of Gujarat.

2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for anticipatory bail in connection with FIR N o . 1 1 1 9 4 0 7 0 2 1 0 0 0 2 / 2 0 2 1 registered with ACB Police Station, Surendranagar for the offences punishable under Sections 409, 465, 466, 468, 471, 120B of the Indian Penal Code and Sections 13(1)(a), 13(2), 12 of the Prevention of Corruption Act, 1988 (Amendment - 2018) and Section 13(1)(d) and 13(2) of Prevention of Corruption Act 1988.

3. Learned Advocate for the Applicant has submitted that the Applicant is apprehending his arrest in connection the aforesaid FIR and in this connection the earlier application filed by the Applicant before the learned Sessions Court came to be dis-allowed. Learned Advocate for the Applicant has submitted that the captioned order is passed in the year 2014 and the Applicant is transferred to other place from 2014. Thereafter the same order was confirmed by the Collector. But subsequently

R/CR.MA/9852/2021 ORDER DATED: 24/12/2021

suo motu proceedings were initiated and the FIR is lodged against the Applicant in the year 2021. Further, it is contended that there is no antecedent. It is also urged by the learned Advocate that the Applicant has passed the order as quasi judicial matter and whether it is valid or not for availing any illegal gain or not, for that, there is nothing on record. Learned Advocate for the Applicant has submitted that the present application may kindly be allowed.

3.1 Learned Advocate for the Applicant has heavily placed reliance upon the orders passed by the Coordinate Bench as under:

(i) Criminal Misc. Application No. 8125 of 2021 dated 28.5.2021.

(ii) Criminal Misc. Application No. 8125 of 2021 dated 25.5.2021.

(iii) Criminal Misc. Application No. 9852 of 2021 dated 18.6.2021, wherein the Coordinate Bench, while granting interim protection to the Applicant, has made the following observations:

R/CR.MA/9852/2021 ORDER DATED: 24/12/2021

"1. The applicant is apprehending his arrest in connection with an FIR being C.R. No.11194070210002 of 2021 registered with Surendranagar ACB Police Station, District Surendranagar for the offence punishable under Sections 409, 465, 466, 467, 468, 471 and 120 B of the Indian Penal Code, 1860 and under Sections 13(1)(A), 13(2) and 12 of the Prevention of Corruption (Amendment-2018) Act and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. 2. It is the case of the applicant that after a period of 7 years from his retirement i.e. on 14.04.2021, one Rameshbhai Bhurabhai Angari, SubDivisional Magistrate and Deputy Collector, Chotila disclosed the commissioning of alleged offences before the ACB Police Station, Surendranagar, alleged to have been committed, during the period of 01.01.2013 to 31.12.2014. The applicant, the then Mamlatdar and ALT, Chotila and the then Resident Additional Collector, Surendranagar were arraigned as accused. It is the case of the prosecution that the accused, in connivance with others have forged a letter dated 05.06.2014 of the Assistant Commissioner, Land Reforms, Gandhinagar, to the extent that the Assistant Commissioner, Land Reforms, has given approval to the alleged illegal orders of the then Mamlatdar and ALT, Chotila, whereas, the Assistant Commissioner has specifically held both the orders as defectives, illegal and recommended the Collector, Surendranagar to take into suo motu revision under Section 37 of the Ceiling Act and to quash the same. However, by using such forged letter as genuine were grabbed the valuable government land. 3. It is the case of the prosecution that the Gujarat Land Ceiling Act, 1960 (for short "the Ceiling Act") came into force on 01.09.1961, thereafter, the Ceiling Act was amended with effect from 01.03.1974, whereby the 'bid land' was also included in the definition of agricultural land. It is further stated in the FIR that the ceiling was fixed considering the

R/CR.MA/9852/2021 ORDER DATED: 24/12/2021

different categories of the land ranging from 30 acres to 54 acres as per the land. 4. It is further alleged in the FIR that one Kamlaben filed a declaration for her holding, as on 24.01.1971 in pursuance of the said declaration form, Ceiling Case No. 86/1976-77 was registered before the Mamlatdar cum Agricultural Land Tribunal, Chotila (for short "the ALT"). It is alleged that in exercise of powers under Section 21 of the Ceiling Act, the ALT vide order dated 26.02.1981 held that Kamlaben is entitled to retain only one unit land, and further, declared A.956-

04 Guntha land of Kamlaben as surplus land under the Ceiling Act from her total holding of A.1010-01 Guntha. 5. It is further alleged in the FIR that the aforesaid order dated 26.02.1981 of the ALT was challenged by way of Land/Ceiling/Appeal No.139/77 before the Deputy Collector, Limbdi, who vide his order dated 14.09.1981 dismissed the appeal and confirmed the order of the ALT. 6. It is further alleged in the FIR that Kamlaben challenged the order of Deputy Collector, Limbdi dated 14.09.1981 before the Gujarat Revenue Tribunal by way of Revision Application No.TEN/BA/1834/81, which came to be rejected vide order dated 24.01.1983. 7. It is further alleged in the FIR that the order of Gujarat Revenue Tribunal dated 24.01.1983 was challenged by Kamlaben by way of Special Civil Application No.1540 of 1983 before this Court, which came to be disposed of vide judgment and order dated 06.09.2013. 8. It is alleged that despite the orders passed by this Court as narrated hereinabove, one Gomtiben and others through their Power of Attorney holder instituted Civil Suit No.43 of 2013 before the Civil Court at Chotila against the land holder Kamlaben inter alia confirming the existence of Satakhat dated 06.10.1968 executed by the defendant in favour of the plaintiffs. In view of the settlement, the suit was decreed on 09.07.2013. 9. Further, the FIR narrates the orders of this Court and the registered sale

R/CR.MA/9852/2021 ORDER DATED: 24/12/2021

deed, which was entered in on 16.07.2013. The allegations in the FIR are premised on the orders passed by this Court as mentioned hereinabove and the subsequent transactions/litigations and orders passed by concerned authorities. The FIR contains various narrations of all the communications/orders passed by various authorities. However, the fact remains that the FIR is filed after the retirement of the applicant from his government service on 31.05.2014. It is also stated that the applicant has served as Prant Officer, Chotila for a period from 13.09.2013 to 03.05.2014 and during the said period, the applicant has not mutated or certified any revenue entry pertaining to the land in question nor has passed any order with regard to the subject matter of land. 10. Learned advocate Mr.Mehul Rathod has further submitted that the allegation against the applicant appears to be that he has forwarded the order to Collector, Surendranagar for review with his positive remarks. It is submitted that the orders referred are having the authorities of law and the applicant acted as per law. It is submitted that the orders against land grabbers was passed on 06.07.2019 by the Deputy Collector, Chotila i.e. the first informant in ALC 2.37/Revision/Appeal No.2/2019 and Appeal No.3 of 2019 of setting aside both the orders of Mamlatdar and ALT dated 18.09.2013 passed in Ceiling Case No.8 of 2013 and order dated 20.02.2014 passed in Ceiling Case No.9 of 2013 was challenged before this Court by way of Special Civil Application No.12662 of 2019, wherein this Court vide order dated 24.07.2019 has issued Rule and granted ad-interim relief. He has submitted that the alleged incidences were alleged to have been committed during 01.01.2013 to 31.12.2014 and the applicant has served at Chotila for the period from 13.09.2013 to 03.05.2014 and the applicant was retired on 31.05.2014 from Patan and the FIR was registered on 14.04.2021 i.e. after a

R/CR.MA/9852/2021 ORDER DATED: 24/12/2021

period of 7 years; this shows mala fide and only to rope the present applicant without there being any justification. He has submitted that the applicant may be granted interim protection.

11. Vehemently opposing the present application, learned APP Mr.HK Patel has submitted that the applicant may not be granted interim protection as the delay will not come in the way of the prosecution. He has submitted that despite the orders passed by this Court in 1983, the applicant has acted beyond his duties and has involved himself in the offence while giving positive remarks on the order dated 19.09.2013. He has further submitted that all the orders passed by the High Court and also various circulars and notifications issued by the State Government were ignored by the present applicant and he has favoured the land grabbers and hence, no interim protection shall be granted. 12. I have heard the learned advocates appearing for the respective parties. 13. As narrated hereinabove, the applicant has retired on 31.05.2014 from Patan as Deputy Collector, Stamp Duty Valuation. The period of alleged irregularity or offence, which is committed between 01.01.2013 to 31.12.2014. It appears that the applicant has only acted as an employee of forwarding the order of the Mamlatdar ALT on 19.09.2013. It is also the case of the applicant that he has served as Prant Officer at Chotila for a period from 13.09.2013 to 03.05.2014. 14. Under the circumstances and in light of the aforesaid facts and submissions, this Court is of the considered opinion that the applicant is entitled to interim protection. The applicant shall not be arrested till the next date of hearing. However, he shall fully cooperate with the investigation and shall remain present before the concerned Investigating Officer on 29.06.2021 between 11:00 a.m. to 4:00 p.m. for getting his statement recorded. The Investigating Officer shall record his statement and file appropriate report on or before the next date of hearing."

       R/CR.MA/9852/2021                                  ORDER DATED: 24/12/2021




3.2           Learned Advocate for the Applicant has further argued that the

applicant will keep himself available during the course of investigation and trial also and will not flee from justice.

3.3 Learned 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. He further submitted 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. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail.

4. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has heavily opposed grant of anticipatory bail looking to the nature and gravity of the offence. She has submitted that the offence is of a serious nature under ACB and the Affidavit-in-Reply is filed on behalf of the Respondent, which is duly sworn in by A.P.Jadeja, Assistant Director, Anti Corruption Bureau, Rajkot Unit, Rajkot dated 31.8.2021 wherein it is stated that handwriting expert report is required to be collected but one accused is expired and two are before this Hon'ble Court by filing separate Criminal Misc. Applications. It is also stated in the affidavit that there are some material which are required to be collected for further investigation. Learned APP has fairly admitted that as such there are no antecedents against the Applicant. Learned APP has therefore submitted that discretion may not be exercised and the present Application may be rejected.

5. Having heard the arguments advanced by 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,

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role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant.

6. This Court has considered following aspects,

(a) the detailed order passed at the admission stage by the Coordinate Bench dated 18.6.2021, granting interim protection to the Applicant.

(b) the order passed by the Applicant is in the capacity as a public servant and further the same is confirmed by the Collector.

(c) since it was subject to approval of the Collector, and therefore, it was not the final order and therefore it appears that whether any irregularity occured or not, which is a question of trial.

(d) there are no antecedents upon the Applicant.

(e) the Applicant is transferred in the year 2014, after 7 years, FIR is registered and the case is of documentary evidence and all the documents are available with the concerned authority, no question of custodial interrogation is required, still however the right of remand is open for the Investigating Officer, if so desire.

(f) in the opinion of this court since all the documents are available with the concerned authority and the authority is empowered to register any other offences if so discloses, but at this juncture, only on the basis of presumption and assumption custody is not required. Still, however, by exercising discretion, the Investigating Officer is empowered to pray for remand before the learned competent Magistrate Court.

(g) as per catena of decisions of Hon'ble Supreme Court there are mainly two factors which are required to be considered by this court;

                (i)      prima facie case
                (ii)     requirement of accused for custodial interrogation.

Therefore, in the facts and circumstances of the present case, this court is inclined to consider the case of the applicant.

7. This Court has also taken into consideration the law laid down

R/CR.MA/9852/2021 ORDER DATED: 24/12/2021

by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565. Further, this Court has also taken into consideration the ratio laid down in the case of Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Anr. in Special Leave Petition No. 7281- 7282/2017 dated 29.01.2020.

8. 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 N o . 1 1 1 9 4 0 7 0 2 1 0 0 0 2 / 2 0 2 1 registered with ACB Police Station, Surendranagar for the offences punishable under Sections 409, 465, 466, 468, 471, 120B of the Indian Penal Code and Sections 13(1)(a), 13(2), 12 of the Prevention of Corruption Act, 1988 (Amendment - 2018) and Section 13(1)(d) and 13(2) of Prevention of Corruption Act 1988, on executing a personal bond of Rs. 50,000/- (Rupees Fifty Thousand) with one surety of like amount on the following conditions:

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

(b) shall remain present at concerned Police Station on 2 1 .1.2022 between 12.00 Noon 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;

       R/CR.MA/9852/2021                                    ORDER DATED: 24/12/2021




(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; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the remand application without being influenced of the observations made by this Court;

9. 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.

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

11. Rule is made absolute. Direct service is permitted.

       R/CR.MA/9852/2021                   ORDER DATED: 24/12/2021




                                                   (A. C. JOSHI,J)

(per court) J.N.W