Yashpaldan Prakashdan Gadhvi vs State Of Gujarat
2021 Latest Caselaw 17748 Guj

    R/CR.MA/11997/2021                                ORDER DATED: 25/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 11997 of 2021

=============================================
                         YASHPALDAN PRAKASHDAN GADHVI
                                     Versus
                               STATE OF GUJARAT
=============================================
Appearance:
MR. J. M. PANCHAL, SR. ADVOCATE with MR PM LAKHANI(1326) for the
Applicant(s) No. 1
MILAN R MARUTI(7338) for the Applicant(s) No. 1
MR NEEL P LAKHANI(10679) for the Applicant(s) No. 1
MRS R P LAKHANI(3811) for the Applicant(s) No. 1
MR. H.K. PATEL, APP for the Respondent(s) No. 1
=============================================

 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                                Date : 25/11/2021

                                  ORAL ORDER

1. This application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR registered as C.R. No.I­2 of 2020 with NAVSARI ACB POLICE STATION, DISTRICT­ NAVSARI, for the offence punishable under Sections 7(a), 12 of Prevention of Corruption Act.

2. Learned Senior Advocate appearing on behalf of the applicant submits that considering the nature of offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

3. Learned Senior Advocate for the applicant submitted that the application is filed in view of the liberty reserved by the Hon'ble Apex Court in order dated 05­10­2020 in Special Leave to Appeal (Criminal Misc. Application No.4587 of 2020) to renew the bail application after framing of the charges. Accordingly, as the charges have been framed on 16­06­2021,

R/CR.MA/11997/2021 ORDER DATED: 25/11/2021

present application under Section 439 of the Code of Criminal Procedure, 1973 for regular bail is filed.

4. Learned Senior Advocate for the applicant submitted that though the previous bail application of the applicant was rejected on merits by this Court in the order dated 07­09­2020 in Criminal Misc. Application No.10991 of 2020. Against which Special Leave to Appeal was dismissed. However, considering the liberty reserved by the Hon'ble Apex Court, it is apparent that Hon'ble Apex Court did not desire that the applicant to continue to be in judicial custody till completion of the trial. Hence, only the liberty was reserved.

5. Learned Senior Advocate for the applicant submitted that on merits considering the maximum sentence that can be passed, case of the applicant deserves consideration. It is also submitted that all the co­accused of the offence have been enlarged on regular bail by this Court by various orders. He refers to the order dated 26­06­2020 passed in Criminal Misc. Application No.8326 of 2020 in case of co­accused-Shaileshbhai Amratbhai Rabari, the order dated 12­10­2020 passed in Criminal Misc. Application No.11527 of 2020 in case of Sanjaybhai Ishwarbhai Desai and also order dated 13­07­2020 passed in Criminal Misc. Application No.8414 of 2020 in case of Kapil Rasikbhai Jethva. It is submitted that the applicant is young man of 27 years and considering the maximum punishment and amended provision of Section 41 of Cr.P.C, the applicant need not to be continued in custody any more.

6. It is submitted that during the running trap, it was co­accused who was found with the smear currency notes and trap qua such co­accused was successful, but the co­accused has been enlarged on regular bail. The applicant whose role is that co­accused have acted at behest of the applicant and therefore, accepted the currency notes on behalf of the present applicant. Therefore, the applicant is arraigned as accused in his capacity being Superior Officer to the co­accused who had allegedly

R/CR.MA/11997/2021 ORDER DATED: 25/11/2021

accepted the bribe and was then in possession of smeared currency notes. It is submitted that trial is likely to be prolonged and therefore, the applicant may not be treated as the convict and be further incarcerated.

7. On the other hand, the learned Additional Public Prosecutor appearing for the respondent­State has opposed grant of regular bail looking to the nature and gravity of the offence.

8. Learned Additional Public Prosecutor also submitted that the applicant who was posted as Mamlatdar, his conduct was deplorable and therefore, requires to be noted. It is submitted that the applicant has used his official capacity to harass the law abiding business man. It is submitted that in the offence, the truck vehicle belonging to the complainant used for transporting the sand, though had all the necessary permits, were not only seized on one occasion, but as the complainant did not fulfill the illegal demand by the applicant, the applicant proceeded to seize another truck also though later on it was found with regards to the plying of the truck, no illegality was found and no case of breach of any provision of Minerals Act was made out, but still to prevent the complainant from further harassment like this, the amount was not only demanded, but was also accepted. The applicant is the Head of the particular Department and the other co­ accused were acting at his behest.

9. Learned APP also draws attention of this Court to the mobile conversation recording, which is clearly indicative of the fact that the applicant who is at the helm of the affair, was actual person, who had demanded the bribe and had set up a mechanism involving his Subordinates to execute the demand and receipt part.

10. It is lastly submitted by learned APP that this Court has assigned cogent reasons in rejecting bail application on the previous occasion, which is confirmed by the Apex Court and hence, case of the applicant deserves to be rejected.

R/CR.MA/11997/2021 ORDER DATED: 25/11/2021

11. In rejoinder, learned Senior Advocate submitted that generally in Bail application, there can never be a case, where the Court records prima facie findings of the guilt in the offence and then go on to grant the bail. In the instant case, though prima facie findings have been recorded in the earlier order, after the order passed by the Hon'ble Apex Court, reserving the liberty at a particular stage, case of the applicant is required to be considered afresh. Learned Senior Advocate has placed reliance on the judgment of the Hon'ble Apex Court in case of Mohan Singh vs Union Territory, Chandigarh reported in AIR 1978 SC 1095.

12. Having considered the rival submissions of the parties and having perused the documents on record, it appears that prima facie, the ingredients of offences are clearly made out as there were demand of bribe and acceptance. From the investigation case papers, it is apparent that there is evidence to establish the demand made by the applicant for paying the bribe money to protest the complainant from being harassed and mechanism devised by the applicant being Head of the Department with the complacency of his subordinates to execute acceptance part. So that the applicant is able to take advantage of escaping from the strict requirement of provisions of Prevention of Corruption Act. Thereby while committing the offence creating his own defense mechanism. Therefore, contention that at best the role of the applicant is to make demand, cannot be accepted as acceptance of the bribe money is through mechanism/ modus operandi devised by the applicant with the help of his immediate subordinates. The applicant himself is the Mamlatdar and Head of the particular Department, accused No.2­ Shailesh Rabari is Circle Officer, accused No.3­ Sanjay Desai is Deputy Mamlatdar and accused No.4­ Kapil Jethva is Clerk in the Mamlatdar Office. The nature of allegations made and the investigations done clearly indicates clear cut role attributed under modus operandi and all the co­accused have worked in tandem to avoid clutches of the Prevention of Corruption Act. However, over all view of the

R/CR.MA/11997/2021 ORDER DATED: 25/11/2021

investigation clearly indicates that all the accused persons have worked as one machine, which is headed by the present applicant.

13. From the investigations papers, it is appearing that the complainant who was in the legitimate business and had all the necessary permits for doing such business, it was the applicant who had intercepted the vehicle transporting the mineral (sand) from the permitted lease with necessary documents including the Royalty pass, was detained by the applicant and when the complainant informed about the vehicle having all the necessary permits, son of the complainant was ordered to come to the Office and meet the applicant. Accordingly, when the son of the complainant went to the office of the Mamlatdar and met the applicant and the Circle Officer and showed him all the necessary documents of the business, demand of bribe was made for the amount of Rs.1,50,000/­ and threats were issued that in case, the amount is not paid, other vehicles also be seized. As the amount as demanded, was not paid, the applicant acted exactly as per threats issued on the previous day and on 21 st May, 2020 and seized yet another truck belonging to the complainant, despite the truck was carrying sand legitimately from license lease mine with all necessary documents including Royalty pass.

14. It is this conduct which compelled the complainant to give into illegitimate demands of the applicant and made him pay the part of the bribe demanded and thereafter, the FIR came to be registered and trap was laid for the balance amount, which was successful. It is pertinent to observe that apparently both the trucks were found to be plying and transporting the mines in proper and legal manner with no breach of any license conditions, later on appears to have been released from the seizure. Nothing has come on record to indicate whether such seizure of the two trucks have been documented in the Office of the applicant, none the less the amount of bribe has been paid.

R/CR.MA/11997/2021 ORDER DATED: 25/11/2021

15. It is the aforesaid conduct which indicates the highhanded manner in which the applicant who is the Public Servant has recklessly used his power / authority not only to harass the citizen, but also to hinder the ongoing business, which was being done legitimately.

16. This Court in the previous order has elaborately held that the role played by the applicant and the evidence available in the form of voice recording indicative of the demand and acceptance of the bribe money. Therefore, when the Apex Court has dismissed the Special Leave to Appeal having confirmed prima facie findings and nothing on record to indicate any subsequent event to obliterate such findings, the Court is not inclined to exercise of discretion in favour of the applicant.

17. In so far as the aspect of Parity is concerned and the argument that even the co­accused who had actually accepted the money and the co­accused in whose custody, such tainted money was found, have been released on regular bail, this Court is of the view that co­accused persons were merely Subordinates and therefore, complacent to the offence. The applicant was the Head of Department and had spearheaded the commission of offence by intercepting the vehicle, making demand and when such demand was not met with, again intercepted another vehicle of the complainant, role of the applicant will have to be viewed in different manner than his Subordinates.

18. The Court has taken into consideration the transcripts of verbal conversation between applicant, son of the complainant, complainant, co­ accused; Shailesh and Sanjay and prima facie of the opinion that well­oiled manner and modus operandi is adopted for joint corruption by the entire office under the Applicant No.1. Therefore, the case of the applicant will have to be viewed differently than co­accused.

R/CR.MA/11997/2021 ORDER DATED: 25/11/2021

19. The Court has to give weightage to what is observed in the order of previous Bail application more particularly in Para­8. The Judgment cited on behalf of the applicant in case of Mohan Singh (supra) was pertaining to the cancellation of bail by the High Court, which was granted by the Sessions Court in a corruption case. The point for consideration was that the High Court had cancelled the bail granted by the Sessions Court, primarily for the reasons that the applicant therein had simultaneously moved bail application in the Sessions as well as in the High Court without disclosing to the Sessions Court about the filing of application before the High Court. The facts being quite dissimilar to the present case, in view of this Court will not help the case of the applicant.

20. In view of the aforesaid facts and circumstances, the Court does not find any reason to exercise of discretion in favour of the applicant. Hence, no case is made out in favour of the applicant for the grant of regular bail in connection with aforesaid crime. Hence, the application deserves to and is hereby dismissed. Rule is discharged.

(A.Y. KOGJE, J) PARESH SOMPURA