Devendra Nathabhai Odedara vs State Of Gujarat
2021 Latest Caselaw 516 Guj

    R/CR.MA/19245/2020                                  CAV JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION NO. 19245 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                        Sd/-

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1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2   To be referred to the Reporter or not ?                        No

3   Whether their Lordships wish to see the fair copy              No
    of the judgment ?

4   Whether this case involves a substantial question              No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== DEVENDRA NATHABHAI ODEDARA Versus STATE OF GUJARAT ========================================================== Appearance:

MR SUDHIR NANAVATI, SENIOR ADVOCATE WITH

MS PRACHITI V SHAH(9990) for the Applicant(s) No. 1 NANAVATI & NANAVATI(1933) for the Applicant(s) No. 1 MR MITESH AMIN, PUBLIC PROSECUTOR(2) WITH

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CORAM: HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 18/01/2021

CAV JUDGMENT

RULE. Learned APP Mr.J.K.Shah waives service of rule on behalf of respondent -State.

1. Present application has been preferred by the applicant

- original accused under section 438 of the Code of Criminal Procedure for anticipatory bail in connection with the FIR being CR No.11191011200066 registered with DCB Police Station, Ahmedabad City for the offences punishable under sections 7, 12, 13(A)(D)(1)(2), 13(2) and 15 of the Prevention of Corruption (Amendment) Act, 2018.

2. The case of the prosecution is to the effect that the while the accused No.1 - Sweta Hamir Jadeja was serving as Police Sub-Inspector, Mahila Police Station (West), Ahmedabad City, she obtained illegal gratification/bribe from the complainant for not proceeding with proposal under the Prevention of Anti Social Activities Act (PASA). It is alleged that in the month of February, 2020, the complainant was asked by the accused No.1 to pay Rs.20 Lakhs and subsequently in another incident, the complainant was asked to pay bribe of Rs.15 Lakhs. It is alleged that such amount was transferred by one employee of the complainant through Angadia which was received by the present applicant - Devendra Odedara. It is alleged that present applicant is Brother-in-law of the accused No.1 and on behalf of the accused No.1, the applicant has received the huge amount and thereby abetted in the offence.

3. Heard Mr.Sudhir Nanavati, learned senior advocate appearing for the applicant and Mr.Mitesh Amin, learned Public Prosecutor appearing for the State, through video-conference.

4. Mr.Sudhir Nanavati, learned senior advocate has submitted that the applicant is not named in the FIR, and nor he is government servant and has not committed the alleged

offence, however, he is falsely implicated in the offence. It is submitted that the applicant is implicated in the offence on the basis of hearsay evidence. It is submitted that specific role is attributed and direct allegations are made against the accused No.1. It is submitted that the allegation that Rs.30 Lakhs have been sent through Angadiya firm to the applicant and merely on the basis of statement of Angadiya firm, the applicant has been roped in the offence. It is submitted that there is nothing on record that the applicant was well within the knowledge that the money received by him are of corruption of the accused No.1. It is submitted that the applicant was not the beneficiary or has not got any amount from the bribe money. It is submitted that the applicant is a businessman and reputed citizen and having no criminal antecedent. It is submitted that the applicant is permanent resident of Upleta and would be available for investigation and trial and is not likely to flee away. It is submitted that if the investigating officer requires presence of the applicant, the applicant shall remain present before the investigating officer as and when required. It is submitted that if the investigating officer requires custodial interrogation, right of remand does not go because of grant of anticipatory bail to the applicant and it is open for the investigating officer to prefer a remand application in case of necessity after recording statement of the present applicant. Ultimately it has been requested to release the applicant on anticipatory bail on suitable conditions.

Mr.Sudhir Nanavati, learned senior advocate for the applicant has relied on the decision in the case of Shaileshbhai Damjibhai Nakum Versus State of Gujarat reported in 2013 SCC Online Gujarat 436 in support of his

argument that issuance of warrant under section 70 of the Cr.P.C. is not a ground to deny anticipatory bail to the applicant.

5. On the other hand, Mr.Mitesh Amin, learned Public Prosecutor appearing for the State has vehemently opposed the present application and has submitted that the applicant is the Brother-in-law of the accused No.1 and he used to collect money sent by the accused No.1 through Angadiya firm. It is further submitted that though the name of the applicant is not disclosed in the FIR, but his name is disclosed from the statement of the owner of the Angadiya firm recorded during the course of investigation under section 164 of the Code of Criminal Procedure. It is submitted that Rs.40 Lakhs have been received by the applicant from the Angadia firm on behalf of the accused No.1. It is submitted that merely because the name of the applicant is not disclosed in the FIR, the applicant is not entitled to anticipatory bail. It is further submitted that there are sufficient material to establish nexus between the main accused and the applicant. It is further submitted that the applicant is on run and he has not responded to the notices issued by the investigating officer for recording his statement and he has remained absconded. He has further submitted that proceedings under section 70 of the Code of Criminal Procedure are also initiated against the applicant and thus, there is total non-cooperation on the part of the applicant to the investigating officer in the investigation, and so if any protection is granted to the applicant, the same would adversely affect the investigation in the offence, which is serious offence. Ultimately, it is requested to reject the application.

Mr.Mitesh Amin, learned Public Prosecutor appearing for the State has relied on the decision of the Hon'ble Supreme Court in the case of Lavesh Versus State (NCT of Delhi), reported in (2012) 8 SCC 730 and has submitted that the conduct of the accused is relevant consideration for considering anticipatory bail application and normally when the accused is absconding and declared as a proclaimed offender, there is no question of granting anticipatory bail to such accused.

6. Before adverting to the rival contentions, legal proposition laid down with regard to different aspects requires consideration while deciding the anticipatory bail application are to be taken note of.

The Hon'ble Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra reported in AIR 2011 SC 312, after considering the earlier judgments laid down certain factors and parameters to be considered while considering application for anticipatory bail and the same are reproduced as under:

"122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone

imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

7. This court in the case of Rajesh Chandulal Shah versus State of Gujarat in Criminal Misc. Application No.9278 of 2018 has held that grant of anticipatory bail in corruption matters involving public servants should be in the rarest of rare cases. It is a settled position of law that neither anticipatory bail nor regular bail can be granted as a matter of rule. The anticipatory bail, being an extraordinary privilege, should be granted only in exceptional cases, It is only if the court is convinced, on the basis of the materials on record, that a public servant has been falsely involved or that the allegations of demand or acceptance of illegal gratification are with an oblique motive or tainted with malafides, that the court may consider to protect such public servant by grant of anticipatory bail. Why should a corrupt public servant, who is not only a menace to the society but a potential threat so far as the progress of the country concerned, be shown any indulgence by a court of law by granting him protection in the form of an anticipatory bail.

8. In light of the above legal position, factual aspects of the present application are required to be considered:

It is an admitted fact that the name of the applicant is not disclosed in the FIR but it is disclosed during the course of

investigation. The owner of the Angadia firm has given statement under section 164 of the Cr.P.C. In which it transpires that the applicant has received various huge amounts on various dates. The police papers clearly show that call record is available which clarifies that the applicant and the original accused No.1 was in constant touch with each other. The contention of the applicant that the applicant is falsely implicated in capacity of abettor in absence of knowledge being Brother-in-law of the main accused is not sustainable. It is clear from the police papers and the submission of the learned Public Prosecutor that the applicant has not responded various notices issued by the investigating officer for recording his statement and the investigating officer was compelled to get warrant under section 70 of the Cr.P.C. As held by the Hon'ble Supreme Court in the case of Lavesh (supra) when the applicant is absconding and declared as a proclaimed offender, he is not entitled to anticipatory bail.

So far as decision relied upon by the learned senior advocate for the applicant in the case of Shaileshbhai Damjibhai Nakum (supra) is concerned, there cannot be any straight-jacket formula for grant or refusal of the anticipatory bail and each anticipatory bail application is required to be decided in the facts of each case. In the present case, the applicant is prima facie involved in the serious offence of corruption and has abetted in corruption by accepting huge amount from Angadia firm. Further, the applicant in not cooperating in the investigating officer. Therefore, the decision relied upon by the learned senior advocate for the applicant is not applicable to the facts of the case on hand. This Court is of the opinion that custodial investigation is required because

huge amount of money of corruption is to be recovered.

9. Considering the overall facts, circumstances and material on record as well as the settled legal position, this Court is of the opinion that no exceptional circumstances have been pointed out by the learned advocate for the applicant for exercise of discretion in favour of the applicant and parameters for grant of anticipatory bail are not satisfied. Under the circumstances, present application is hereby rejected.

Rule is discharged.

Sd/-

(RAJENDRA M. SAREEN,J) URIL RANA/ RAFIK