Rohitkumar Harjibhai Makwana vs State Of Gujarat
2021 Latest Caselaw 16809 Guj

      R/CR.MA/18855/2021                                  ORDER DATED: 26/10/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC. APPLICATION NO. 18855 of 2021

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                           ROHITKUMAR HARJIBHAI MAKWANA
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR. ASHISH M. DAGLI, ADVOCATE and MS AISHWARYA H
CHAUDHARY(11539) 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 : 26/10/2021
                       ORAL ORDER

1. This Application is filed by the Applicant - Accused under Section 439 of the Code of Criminal Procedure for enlarging the applicant on Regular Bail in connection with C.R. No. 11205017210175 registered with Jakhau Police Station, District Kachchh for the offences punishable under Sections 7, 13(1)

(a), 13(2) of the Prevention of Corruption Act.

2. Heard learned Advocate Mr. Ashish M. Dagli for learned Advocate Ms. Aishwarya H. Chaudhary for the Applicant and learned APP Ms. Monali Bhatt for the Respondent State.

3. Rule. Learned APP waives service of notice of Rule on behalf of the Respondent State of Gujarat.

Submission of the Parties:

4. Learned Advocate for the Applicant / Accused has submitted that the Applicant Accused is innocent as he has not taken part in the offence as alleged. He has family roots in the society and therefore, he is not likely to flee away from justice. That the charge sheet is filed. That he will abide by whatever conditions imposed by the Hon'ble Court. He has further vehemently

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submitted that there is no direct involvement of the Applicant Accused in the present case so far as allegation is concerned. There are no antecedents against the Applicant Accused. He has therefore prayed that discretion may kindly be exercised and grant bail to the Applicant Accused. Learned Advocate for the Applicant has placed reliance on the judgment of this Court in the case of Rameshbhai Ravjibhai Makadia v. State of Gujarat - Criminal Misc. Application No. 5197 of 2020 and also the judgment of this Court in the case of Kamsingbhai Talsingbhai Rathva v. State of Gujarat - Criminal Misc. Application No. 7579 of 2020.

5. Per contra, learned APP has vehemently argued that though there is no antecedent against the Applicant Accused but simultaneously, there is a prima facie case against the Applicant Accused there is a allegation of demanding Rs.25000/- but subsequently, Rs.16500/- is accepted and he has not cooperated the investigation so far as voice recording is concerned. Therefore, on the basis of the affidavit filed by the investigating agency, there are evidence of CCTV Footage. Learned APP has submitted that therefore discretion may not be exercised and ultimately the learned APP has opposed grant of bail looking to the nature and gravity of offence, involvement of the Applicant / Accused. The learned APP has further submitted that if the Hon'ble Court is inclined to grant bail then in such case strict conditions may be imposed to secure the presence of the Applicant Accused.

Merits of the Case:

6. This court has considered the following aspects:

(a) That in the present case it is an admitted fact that the Applicant accused has come for this Application after the charged sheet is filed.

(b) That even if it is a prima facie case, then also as such there is no antecedent.

(c) Further as per catena of decisions of Hon'ble Supreme Court, there are mainly 3 factors which are required to be considered by this court i.e. prima

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facie case, availability of Applicant accused at the time of trial and tampering and hampering with the witnesses by the accused.

(d) That the learned Advocate for the Applicant has submitted that the Applicant Accused is not likely to flee away.

(e) That the Applicant Accused is in custody since June 2021.

(f) The law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I. Reported in (2012) 1 SCC 40, wherein it is held that bail is a rule and jail is an exception.

(g) This Court has also considered the reliance placed by the learned Advocate for the Applicant on the two judgments of this Court.

7. Having heard the learned Advocates for the parties and perusing the record produced in this case as well as taking into consideration the facts of the case, nature of allegations, gravity of accusation, availability of the Applicant Accused at the time of Trial etc. and the role attributed to the present Applicant accused, the present Application deserves to be allowed and accordingly stands allowed. The Applicant Accused - ROHITKUMAR HARJIBHAI MAKWANA is ordered to be released on regular bail in connection with C.R. No. 11205017210175 registered with Jakhau Police Station, District Kachchh, on executing a personal bond of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that he shall:

(a) 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 any Police Officer or tamper with the evidence.

(b) maintain law and order and not to indulge in any criminal activities.

(c) furnish the documentary proof of complete, correct and present address of his residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not change his residence without prior permission

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of the trial Court.

(d) provide his contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court.

(e) file an affidavit stating his immovable properties whether self acquired or ancestral with description, location and present value of such properties before the Trial Court, if any.

(f) not leave India without prior permission of the Trial Court

(g) mark presence before the concerned police station on every 1st day of English calendar month between 12:00 Noon and 2:00 PM till one year or till the trial is concluded, whichever is earlier.

(h) surrender passport, if any, to the Trial Court within a week. If he does not possess passport, he shall file an Affidavit to that effect.

(i) shall maintain all the rules and regulations framed by the Municipality regarding contemporary status of corona virus/Covid-19, State Government or by any competent authority, including social distancing.

8. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to furnish the solvency certificate if prayed for.

9. If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The Authorities will release the Applicant forthwith only if he is not required in connection with any other offence for the time being.

10. Rule is made absolute. The Registry is directed to communicate this order by Fax / by E-mail to the concerned Court / Authority.

(A. C. JOSHI,J) 1 / J.N.W