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Gujarat High Court · body

2022 DIGILAW 162 (GUJ)

Ashok Prabhulal Barot v. State of Gujarat

2022-01-28

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. ORDER IN CRIMINAL APPEAL NO. 127 of 2022 1. By way of present Criminal Appeal, appellant-original accused has challenged the judgment and order of conviction and sentence dated 09.12.2021 passed by learned Special Judge, CBI Court No. 7, City Civil and Sessions Court, Bhadra, Ahmedabad in CBI Special Case No. 21 of 2015. 2. Heard learned advocate for the appellant. 3. It is submitted by learned advocate for the appellant that looking to the oral evidence, prosecution has failed to prove charge against the present appellant as there are major discrepancies in the evidence of the witnesses. That only complainant is the witness, who was dealing with the work of Railway since 2006. It is further submitted that prior to lodging the complaint, demands should be proved, which lacks in the present case as not verified and no demand panchnama was prepared by the prosecution. That neither the demand or acceptance nor any recovery was established by the prosecution, and therefore, ingredients of Section 7 of the Act are not proved by the prosecution. It is further submitted that appellant has not misused his official position on the alleged date of raid, and therefore, no offence is made out under Sections 13(2) and 13(1)9(d) of the Act. It is further submitted that no one had seen the appellant accepting the bribe and no eye witness was examined who had seen the transaction of the bribe amount. That no file or documents were recovered from the possession of present appellant and at no point of time, work was pending with the present appellant. That learned trial court has failed to appreciate the aspect that after receiving the complaint, phone call was made by the complainant to the appellant only to ascertain the presence of the appellant in the offence but no other conversation had taken place regarding any amount work or demand. 4. Issue requires consideration. 5. ADMIT. 6. Learned APP waives service of notice of admission for and on behalf of respondent-State and learned Special Public Prosecutor Mr. R.C. Kodekar waives service of notice of admission for and on behalf of respondent No. 2. ORDER IN CRIMINAL MISC. APPLICATION NO. 1 of 2022 7. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of respondent-State and learned Special Public Prosecutor Mr. R.C. Kodekar waives service of notice of admission for and on behalf of respondent No. 2. ORDER IN CRIMINAL MISC. APPLICATION NO. 1 of 2022 7. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of respondent-State and learned Special Public Prosecutor Mr. R.C. Kodekar waives service of notice of rule for and on behalf of respondent No. 2. 8. By way of present application, applicant has prayed for following reliefs: "(A) to allow this application; (B) to suspend the judgment and order of sentence 09.12.2021 passed by the learned Special Judge, CBI Court No. 7, City Civil and Sessions Court, Bhadra, Ahmedabad, in CBI Special Case No. 21 of 2015, during the pendency and final disposal of the main appeal; (C) to release the applicant on regular bail during the pendency and final disposal of the main appeal." 9. Heard learned advocate for the applicant, learned APP appearing for the respondent-State and learned Special Public Prosecutor appearing for the respondent No. 2. 10. It is submitted by learned advocate for the applicant that looking to the oral evidence, prosecution has failed to prove charge against the present applicant as there are major discrepancies in the evidence of the witnesses. That only complainant is the witness, who was dealing with the work of Railway since 2006. It is further submitted that prior to lodging the complaint, demands should be proved, which lacks in the present case as not verified and no demand panchnama was prepared by the prosecution. That neither the demand or acceptance nor any recovery was established by the prosecution, and therefore, ingredients of Section 7 of the Act are not proved by the prosecution. It is further submitted that applicant has not misused his official position on the alleged date of raid, and therefore, no offence is made out under Sections 13(2) and 13(1)9(d) of the Act. It is further submitted that no one had seen the applicant accepting the bribe and no eye witness was examined who had seen the transaction of the bribe amount. That no file or documents were recovered from the possession of present applicant and at no point of time, work was pending with the present applicant. It is further submitted that no one had seen the applicant accepting the bribe and no eye witness was examined who had seen the transaction of the bribe amount. That no file or documents were recovered from the possession of present applicant and at no point of time, work was pending with the present applicant. That learned trial court has failed to appreciate the aspect that after receiving the complaint, phone call was made by the complainant to the applicant only to ascertain the presence of the applicant in the offence but no other conversation had taken place regarding any amount work or demand. It is further submitted that short sentence is imposed upon the applicant to a term of 5 years as a maximum sentence and appeal preferred by the applicant would take reasonable time for final disposal. That applicant was released on bail during the trial and he has not misused the liberty during the period. That custody of the present applicant would not be required during the pendency of the criminal appeal. Hence, it is requested by learned advocate appearing for the applicant to allow the present application. Learned advocate appearing for the applicant has relied upon the judgment of the Hon'ble Apex Court in case of N. Ramamurthy v. State of Central Bureau of Investigation, A.C.B., Bengaluru reported in AIR 2019 Supreme Court Page 2161. 11. Learned APP appearing for the respondent-State and learned Special Public Prosecutor appearing for the respondent No. 2 have strongly objected the submissions made by learned advocate for the applicant and requested to dismiss the present application. 12. Having heard learned advocate for the applicant, learned APP appearing for the respondent-State and learned Special Public Prosecutor appearing for the respondent No. 2 as well as documents produced on record, prima facie it appears that there was no verification of demand and directly the amount was handed over and recovered. The amount was lying on compactor which was recovered, no trap sample was taken. No signature of the applicant was obtained on the arrest memo at Exh. 41 as well as seizure memo/recovery memo. It also appears that Deputy Superintendent of Police, Senior Officer, was also present throughout the trap proceedings but however, his signature was not obtained on any of the document. However, his statement was recorded he was not examined by the prosecution. 13. 41 as well as seizure memo/recovery memo. It also appears that Deputy Superintendent of Police, Senior Officer, was also present throughout the trap proceedings but however, his signature was not obtained on any of the document. However, his statement was recorded he was not examined by the prosecution. 13. It appears that applicant was released on bail during the trial and he has not misused any liberty. In case of Atul Indravadan Vaidh Thro. His Wife Vaidh Dipikaben Atulbhai v. State of Gujarat and Others delivered in Criminal Misc. Application (For Suspension of Sentence) No. 15020 of 2017 in Criminal Appeal No. 1177 of 2016, this Court has observed as under: "We have applied the test of the principles enunciated by the Supreme Court in the judgments discussed hereinabove, to the facts and circumstances of the present case, while keeping all aspects of the matter including the nature of the offence and its possible social implications in mind vis a vis the liberty of the convicted applicant. The sentence imposed upon the applicant is for a limited duration, namely, imprisonment for seven years. Though the criminal appeal preferred by him has been admitted, there does not appear to be any likelihood that it would be heard and disposed of in the near future. The learned Special Public Prosecutor has submitted that the SIT has sought approval from the State Government to challenge the acquittal of the applicant under Section 302 of the IPC and also to prefer an appeal for enhancement of the sentence. Such an appeal has not been filed so far but if filed in future, it would have to be heard along with the criminal appeal preferred by the applicant. There would be other appeals of convicted persons and all appeals would be heard together, as is the usual practice. The expeditious disposal of the appeal (s), therefore, cannot be said to be a possibility that can be banked upon, with any amount of certainty." 14. Accordingly, present application is hereby allowed. The impugned judgment and order dated 09.12.2021 passed by learned Special Judge, CBI Court No. 7, City Civil and Sessions Court, Bhadra, Ahmedabad in CBI Special Case No. 21 of 2015 shall be suspended till final disposal of the Criminal Appeal. 15. Applicant is ordered to be released on regular bail on executing a personal bond of Rs. The impugned judgment and order dated 09.12.2021 passed by learned Special Judge, CBI Court No. 7, City Civil and Sessions Court, Bhadra, Ahmedabad in CBI Special Case No. 21 of 2015 shall be suspended till final disposal of the Criminal Appeal. 15. Applicant is ordered to be released on regular bail on executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand Only) with one surety 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] 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 learned Sessions Court concerned; 16. The Authorities will release the applicant only if he 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. 17. Rule is made absolute to the aforesaid extent. 18. This order be communicated to the applicant through Jail Authorities by the registry as well as learned Sessions Court concerned.