Virambhai Lilabhai Desai vs State Of Gujarat
2023 Latest Caselaw 469 Guj

     R/CR.MA/7704/2021                                  ORDER DATED: 16/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL MISC.APPLICATION NO. 7704 of 2021
                            With
 CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 1 of 2022
       In R/CRIMINAL MISC.APPLICATION NO. 7704 of 2021
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                         VIRAMBHAI LILABHAI DESAI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
HIMANSHU V THAKKAR(9569) for the Applicant(s) No. 1
MR JK SHAH, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                              Date : 16/01/2023

ORAL ORDER

IN R/CRIMINAL MISC.APPLICATION NO. 7704 of 2021

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - original accused has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR being C.R.No.I- 2 of 2021 registered with ACB Police Station, Gandhinagar for the offence punishable under Sections 12, 13(1)(b) and 13(2) of the Prevention of Corruption Act.

2. Heard learned advocate for the applicant as well as learned APP for the respondent-State.

3. Learned advocate for the applicant submits that the nature of allegations are such for which custodial

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interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. That, 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 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.

4. It was submitted by learned advocate for the applicant that the impugned FIR is nothing but an abuse of process of law inasmuch as the same is filed after a huge unexplained delay of more tha 15 years as the period covered under the FIR is commencing from 01.04.2006 to 31.03.2020 and that too it is filed only after retirement of the applicant. That the FIR has not been filed against the applicant but against all the family members of the accused no.1 who are in fact not the public servants at any point of time. That, the provisions of Section 13(1)(b) and 13(2) of the Prevention of Corruption Act have been wrongly invoked against the applicant as on the date of filing complaint, the accused no.1 was never a public servant. The definition of public servant given in Section 2(c) of the Act starts with opening words that "any person" in the service or

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pay of the government, local authority, holds office etc. If the applicant or even accused no.s. 2 to 7 do not fall within the purview of Section 2(c) of the Act. That, there is no complaint against the applicant during his entire period of service alleging that he took money from anyone or derived undue advantage for any work. No such complaint made by any person with any specific name and for any specific work is even alleged in the FIR. That, there is no basis at all which even remotely justify an allegation against the applicant that he intentionally enriched himself illicitly during the period of his office and that he committed criminal misconduct within the meaning of Section 13(2) of the Prevention of Corruption Act . Ultimately, it was requested by learned advocate for the applicant to allow present application.

5. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. That, the disproportionate property of the applicant is found in such a huge stake as many as 185.92% disproportionate assets were found as per the ABCD format. That other family members are involved in the office and to hide the illegal accounts of all the accused, they have created documentary evidence like Income Tax Return through their

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Chartered Accountant. If the applicant will be given protection by way of anticipatory bail then it is a clear encouragement to the Government Employee who have involved themselves in such type of offences and there would be no fear of law among them. That the applicant is involved in the offence of corruption. That, the applicant is involved in the serious offence as alleged and therefore, no leniency view would be taken in favour of the applicant while releasing him on anticipatory bail. Ultimately, it was submitted by learned APP for the respondent-State to reject present application.

4. I have considered the allegations leveled against the present applicant in the FIR and perused the papers of investigation and considered the role played by the applicant. It appears from the record that applicant was a government servant and is retired from his services and the complaint has been filed after his retirement of applicant. As per the complaint, preliminary inquiry was given to the Investigating Officer on 03.11.2018 and after preliminary inquiry it was found that the applicant being a government servant has acquired disproportionate assets in tune of 122.39% as per the FIR and 185.92% as per the affidavit of the Investigating Officer. It is found from the record that when the applicant being called out by the Investigating Officer for interrogation,

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he does not always remain present. In the same way, the family members of applicant also did not remain present always and on some occasions, they remained absent.

5. It appears from the record that investigating officer has filed his affidavit in this matter on 1 st June 2021 wherein it is clearly mentioned that during the course of preliminary inquiry, the applicant and other accused persons were given adequate opportunity to provide explanation of the expenditures and purchase of properties. That the applicant and other accused persons were called by the Investigating agency on 13 different occasions for recording statement to give explanation, none of the accused persons have cooperated with the investigating agency. It appears that in the impugned FIR at page no. 22 of the memo of the paper book, a detailed chart is mentioned wherein the applicant and other accused persons were called by the Investigating Agency.

6. It appears from the record and affidavit of the investigating officer that the applicant was a government servant and the society expects very high values from the government servants. It appears from the record that sufficient opportunities are given to the applicant during the inquiry but the applicant is not cooperating in the investigation. Not only that the allegation against the applicant is relating to

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acquisition of disproportionate assets and if the court will release the applicant on anticipatory bail, then it is clear encouragement to the government servants who have engaged themselves in such type of offence and secondly the society will loose faith on the courts and it would leave impression on common people that even if the government servants are caught for the offence like disproportionate property or corruption or corrupt practice then also they are released on anticipatory bail.

7. One best line in the law is that the court must maintain fine balance between the personal liberty and social interest. Of course while deciding the anticipatory bail application, court has to consider the gravity of the offence and social impact due to releasing the applicant on anticipatory bail. Thus, this court is of the considered view that while considering the role played by the applicant in the offence and considering the gravity of offence, if the applicant will be released on bail, a negative message will go to the society and it is true that the anticipatory bail is a protection shield against the arrest by the police but in the present case interrogation of the applicant is required and if he will be released on anticipatory bail, sufficient opportunity will not be available to the Investigating Agency.

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8. Thus, as per aforesaid discussion, the prayer of the applicant for releasing him on anticipatory bail stands rejected and accordingly, present application stands rejected.

9. Before parting with this judgment, it is hereby clarified that the aforesaid observations made in this order have been made for the purpose of considering the present application for anticipatory bail. Therefore, same shall not come in the way of the trial court for considering the application that may be filed by the applicant for regular bail or at the time of trial and the trial court concerned shall not be influenced by the observations made hereinabove.

Rule stands discharged. Interim relief, if any, granted earlier stands vacated.

ORAL ORDER IN CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 1 of 2022 In R/CRIMINAL MISC.APPLICATION NO. 7704 of 2021

This application has already been disposed of vide order dated 21.12.2022 by coordinate bench of this court thus registry is directed to mention this application as disposed of in the record.

(SAMIR J. DAVE,J) K. S. DARJI