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Bail can not be Denied to Chargesheeted accused on the ground of abscondence of other accused

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC. APPLICATION NO. 13538 of 2020

SHWETA HAMIR JADEJA
Versus
STATE OF GUJARAT

Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR MITESH AMIN, PP(99) for the Respondent(s) No. 1

CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

Date : 26/10/2020

ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure by the applicant for regular bail in connection with an FIR being C.R.No.11191011200066 of 2020 registered with DCB Police Station, Ahmedabad City for the offences under Sections 7, 12 and 13 (A) (D) (1) (2), 13 (2) and 15 of the Prevention of Corruption Act [as amended by the Prevention of Corruption (Amendment) Act, 2018].

2. The case of the prosecution is to the effect that while the applicant herein was serving as Police Sub Inspector, Mahila Police Station (West), Ahmedabad City, the applicant herein obtained illegal gratification/bribe from the complainant for not proceeding with proposal under the Prevention of Anti­Social Activities Act (PASA). It is alleged that, in the month of February 2020, the complainant was asked by the present applicant to pay Rs.20 Lakhs and subsequently, in another incident the complainant was asked to pay bribe of Rs.15 Lakhs. It is also alleged that such amount was transferred by one employee of the complainant through Angadia which was received by one co­accused viz. Devendra Odedara. It is also alleged that co­accused is relative of the applicant and on behalf of her, he has received the amount. With such allegations, complaint is filed against the present applicant.

3. Heard Mr.Virat Popat, learned advocate for the petitioner and Mr.Amin, learned Public Prosecutor for the respondent­State through video conferencing.

3.1 The main contention of the learned advocate for the petitioner is that the petitioner is a lady accused and she is entitled to be released on bail. He submitted that as per the provisions of Section 437 of the Criminal Procedure Code, the woman accused can be released even in cases where the offence is punishable with imprisonment of life, while in the present case, the maximum punishment is of seven years. He has also contended that there is no iota of evidence regarding demand of bribe, which is most important aspect under the provisions of the Prevention of Corruption Act. According to him, in the present case, there is no such material filed by the prosecution with the charge sheet to show that there was a demand of bribe. He has also contended that whatsapp messages exchanged between the parties cannot be treated as proof of demand.

3.2 Learned counsel for the petitioner also submitted that though Section 13 of the Prevention of Corruption Act has been amended recently, the prosecution has relied upon old provision of Section 13 of the Act. He has further contended that the case does not fall under Old Provisions of the Act and, therefore, this fact may also be considered while deciding present application. Learned advocate for the petitioner further submitted that in view of new Amendment Act, Section 9 (4) provides that certain offences are non­cognizable and, therefore, the facts narrated by the prosecution against the present petitioner are non­ cognizable offence and in that case even police could not have arrested her.

3.3 Mr.Popat, learned advocate for the petitioner further submitted that the petitioner is a lady and she is in jail since 3.7.2020 and charge sheet has already been filed against her and there is no need of further investigation. He submitted that as one of the accused is absconding, the petitioner cannot be put behind the bar and it is the function of the investigating officer to arrest the accused, who is absconding. He has relied upon following decisions:­

(i) B. Satya Narayan Murthi v. District Inspector of Police and Others reported in AIR (2015) SC 3549.

(ii) Order passed by coordinate Bench of this Court dated 19.6.2018 in the case of Dr.Kanaiyalal Sundarji Detroja v. State of Gujarat in Criminal Misc. Application Nos.9865, 9866 and 3486 of 2018.

(iii) Order of coordinate Bench of this Court dated 5.4.2016 passed in the case of Sanjay Raghunathprasad Gupta v. State of Gujarat in Criminal Misc. Application No.4146 of 2016.

3.4 In view of above, he has prayed to allow present application by enlarging the lady accused on bail.

4. Per contra, Mr.Amin, learned Public Prosecutor has vehemently opposed the present petition and has submitted that there is sufficient evidence on record to suggest that present petitioner is involved in the alleged offence under the Prevention of Corruption Act, 1988, which has been amended recently. While referring to provisions of Section 13, learned PP has submitted that by the alleged act of accepting the bribe through Angadiya and sending it to her near relative clearly points towards involvement of the lady accused in the crime. By referring to the evidence, which includes statement of witnesses. He has submitted that the complainant has send money through Angadiya to the relatives of the petitioner. He has also submitted that one mobile phone has been purchased by the applicant in her name at the cost of the complainant. According to Shri Amin, the modus operandi of accepting the gratification by the present petitioner is strengthened by the statement of witnesses, which includes employee of the complainant and that of the Angadiya firm.

4.1 Mr.Mitesh Amin, learned Public Prosecutor has also submitted that so far as Section 9 (4) is concerned, it has to be read in consonance with entire Section 9, which applies to commercial organization. According to him, this Section does not apply to the present case. Learned Public Prosecutor has vehemently submitted that other accused who is near relative of present petitioner, is not yet arrested and he is absconding. According to him, therefore, after arrest of that fellow some investigation will be carried out and it may reveal further material against the present petitioner, therefore, she may not be enlarged on bail, though she is a lady. He has relied upon following decisions in support of his submissions.

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(i) Order of coordinate Bench of this Court dated 5.5.2020 in the case of Paresh Nathalal Chauhan v. State of Gujarat rendered in Criminal Misc. Application No.6237 of 2020.

(ii) Record of proceedings of Supreme Court in Special Leave to Appeal (Cri.) No.1803 of 2020 dated 17.4.2020.

(iii) Record of proceedings of Supreme Court dated 3.7.2020 passed in Special Leave to Appeal (Cri.) No.4050 of 2020 arising out of order passed in Criminal Misc. Application No.6237 of 2020.

4.2 Mr.Amin further submitted that the present applicant has misused her authority as a police officer and asked the complainant to part with huge amount as bribe. On relying upon aforesaid decisions, he prayed to dismiss present application.

5. In rejoinder, Mr.Popat submitted that the complainant is facing two cases of rape and those cases were being investigated by present petitioner, therefore, the complainant has grievance against the petitioner and, therefore, the petitioner may be enlarged on bail.

6. This Court has heard learned advocates appearing on both sides and perused the material available on record. On perusal of order of coordinate Bench dated 5.5.2016 passed in Criminal Misc. Application No.6237 of 2020, it is clear tha it was matter pertaining to offence under the Goods and Service Tax Act and allegation was to the effect that the accused has obtained tax credit to the tune of Rs.60 Crores through fictituous establishments of other persons. The maximum punishment for such offence is five years imprisonment and the coordinate Bench has held as under in paragraph 6:­ “6. In the instant case, it appears that the case would require thorough investigation with the possibility of addition of more accused to the array; inasmuch as, as many as 406 summonses have been issued and 92 beneficiary firms are under scrutiny. Complaint might have been filed against the petitioner in compliance with Section 167 of Cr.P.C, that would however not preclude the investigating agency to investigate into what could be the huge racket and under such circumstances placing the petitioner out of jail would be potential threat to the investigation; inasmuch as, the manipulation of the evidence at the hands of the petitioner cannot be ruled out. The loss of Rs. 60 Crores to the public exchequer so far cannot be considered as a small amount. It appears that it is only owing to timely detection of the crime that the loss so far is Rs. 60 Crores; it would have been much­much more in absence of detection of the crime. It is not as if the petitioner stopped at Rs. 60 Crores; in all probability he would have continued the racket in absence of its detection. Therefore, what is relevant is not the quantum, but well­ designed pre­meditated plan floated by the petitioner to loot the public exchequer.”

6.1 It appears that aforesaid order was challenged by the applicant before the Apex Court, however, such matter was withdrawn as per the proceedings of the Supreme Court. Thus, the application was rejected on the ground as set out in paragraph 6.

6.2 In the present case, the offence is punishable for seven years imprisonment but the argument of learned Public Prosecutor is that even in case of punishment of five years, this Court has rejected the bail application and in the present case, considering the amount of briber also, present application may be rejected. However, it clearly appears that there is distinction in the facts of both the cases. Present case is pertaining to Prevention of Corruption Act, whereas in the aforesaid case is under the GST Act and there was huge tax credit received by the accused to the tune of Rs.60 Crores. It is also pertinent to note that in the aforesaid case, the investigation was yet to be carried out against other accused persons and there was likelihood of further material to be found in such investigation. Whereas in the present case, so far as present applicant is concerned, the prosecution after due investigation has filed charge sheet.

7. It is pertinent to note that the other ground raised by the prosecution is that the co­accused, who is relative of the present applicant, is absconding and, therefore, present petitioner may not be enlarged on bail. Now, it is well settled principle of criminal jurisprudence that even for securing presence or for getting whereabouts of the co­accused, no police custody remand could be granted. The same principle will apply in the case where bail is sought by the accused and the charge sheet is already filed against him/her. If there is laxity or inability of the prosecution to arrest the co­accused, on that ground the other accused against whom investigation is over and charge sheet is filed cannot be denied the right of getting bail in a given case.

8. At this stage, it is required to be mentioned that while making arguments, learned advocate for the petitioner has relied upon amended provisions of Section 13, which reads as under :­ “13. Criminal misconduct by a public servant.­(1) A public servant is said to commit the offence of criminal misconduct,–

(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or

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(b) if he intentionally enriches himself illicitly during the period of his office.

Explanation 1.–A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.

Explanation 2.–The expression ”known sources of income” means income received from any lawful sources.”.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.”

8.1 Unamended provisions of Section 13 reads as under:­ “13. Criminal misconduct by a public servant.– (1) A public servant is said to commit the offence of criminal misconduct,–

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,–

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.–For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine”.

8.2 In view of aforesaid provisions of the Act, it is clear that the legislature has amended the provisions and enlarged the scope of Section 13. Of course, in the present case, the prosecution has referred to unamended Section 13, however, even if amended Section 13 is made applicable then Section 13 (1) (b) would be attracted in the present case, which provides that if public servant commits a criminal misconduct with an intention to enrich himself illegally during the period of his office, he is said to have committed the offence under Section 13. Now, in the present case, mere mentioning of wrong provision may be treated as a mistake, which can be corrected by the prosecution. The mistake of mentioning of wrong Section is not ipso facto illegal. It is just an irregularity which can be rectified.

9. Learned advocate for the petitioner has relied upon Section 9 of the Act, which provides as under:­ “9. Offence relating to bribing a public servant by a commercial organization ­ (1) Where an offence under this Act has been committed by a commercial organisation, such organisation shall be punishable with fine, if any person associated with such commercial organisation gives or promises to give any undue advantage to a public servant intending­

(a) to obtain or retain business for such commercial organisation; or

(b) to obtain or retain an advantage in the conduct of business for such commercial organisation:

Provided that it shall be a defence for the commercial organisation to prove that it had in place adequate procedures in compliance of such guidelines as may be prescribed to prevent persons associated with it from undertaking such conduct.

(2) For the purposes of this section, a person is said to give or promise to give any undue advantage to a public servant, if he is alleged to have committed the offence under section 8, whether or not such person has been prosecuted for such offence.

(3) For the purposes of section 8 and this section,–

(a) “commercial organisation” means–

(i) a body which is incorporated in India and which carries on a business, whether in India or outside India;

(ii) any other body which is incorporated outside India and which carries on a business, or part of a business, in any part of India;

(iii) a partnership firm or any association of persons formed in India and which carries on a business whether in India or outside India; or

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(iv) any other partnership or association of persons which is formed outside India and which carries on a business, or part of a business, in any part of India;

(b) “business” includes a trade or profession or providing service;

(c) a person is said to be associated with the commercial organisation, if such person performs services for or on behalf of the commercial organisation irrespective of any promise to give or giving of any undue advantage which constitutes an offence under sub­section (1). Explanation 1.–The capacity in which the person performs services for or on behalf of the commercial organisation shall not matter irrespective of whether such person is employee or agent or subsidiary of such commercial organisation.

Explanation 2.–Whether or not the person is a person who performs services for or on behalf of the commercial organisation is to be determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between such person and the commercial organisation.

Explanation 3.–If the person is an employee of the commercial organisation, it shall be presumed unless the contrary is proved that such person is a person who has performed services for or on behalf of the commercial organisation.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offence under sections 7A, 8 and this section shall be cognizable.

(5) The Central Government shall, in consultation with the concerned stakeholders including departments and with a view to preventing persons associated with commercial organisations from bribing any person, being a public servant, prescribe such guidelines as may be considered necessary which can be put in place for compliance by such organisations.”

9.1 Reliance placed on sub­section (4) of Section 9 of the Act by learned advocate for the petitioner is devoid of merits as the entire section 9 is pertaining to the offence relating to bribe to public servant by a commercial organization. Thus, it does not affect the other provisions of the Act, which are applicable to the public servants, taking bribe or illegally enriching himself.

10. The facts emerging from the material shows that the petitioner herein was investigating two FIRs of commission of rape by the complainant of present case, wherein it is alleged that the accused has been compelled to pay huge amount as bribe and a mobile phone for not taking any action against him under the PASA Act. The petitioner herein is a lady and is in jail since 3.7.2020. It is also apperant that during the course of investigation, the petitioner was send to police custody and after investigation charge sheet has been filed. The petitioner being a public servant is not likely to flee away. The principle of law that “bail is a rule and jail is exception” will apply in the present case also. This Court has also considered the law laid down by Apex Court in the case of Sanjay Chandra Vs. Central Bureau Investigation, reported in (2012) 1 SCC 40 and this Court is of the considered opinion that present petition is required to be allowed. This Court has also taken into consideration the assurance given on behalf of the applicant that she will abide by all conditions that may be imposed by this Court.

11. In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being C.R.No.11191011200066 of 2020 registered with DCB Police Station, Ahmedabad City on executing a personal bond of Rs.1,00,000/­ (Rupees One Lac Only) with two sureties each of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that the applicant shall;

[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] mark presence before the concerned Police Station on every Monday of each English calendar month for a period of three months and thereafter, alternate Monday for a period of six months, between 11:00 a.m. and 2:00 p.m.;
[f] furnish latest and permanent address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial Court;

12. The Authorities will release the applicant only if she is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.

13. Rule is made absolute to the aforesaid extent. Registry is directed to serve this order to the concerned authority through e­mail/fax or any other electronic mode.

(DR. A. P. THAKER, J)

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