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2022 DIGILAW 165 (GUJ)

Chamanlal Hirabhai Vaghela v. State of Gujarat

2022-01-28

ILESH J.VORA

body2022
JUDGMENT : Ilesh J. Vora, J. 1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - accused has prayed for anticipatory bail in connection with the FIR being CR No. 08/2018 dated 24.04.2018 registered with ACB Police Station, Palanpur, for the offences under Sections 13(1)(e) and 13(2) (disproportionate assets case) of the Prevention of Corruption Act, 1988. 2. Brief facts giving rise to file present application are t(sic) 2.1 An FIR dated 24.02.2018 came to be registered with ACB Police Station, Palanpur against the applicant, for a case of disproportionate assets under the provisions of Prevention of Corruption Act. 2.2 Prior to FIR, an application was received by the authority from Jivabhai Velabhai Aankurya dated 24.10.2017, inter-alia alleging that the applicant herein Chamanlal Vaghela, serving as a Teacher with Talegad Primary School, Dist.: Banaskantha and being a President of District Primary Teachers' Union, Banaskantha, had committed the offences under the Provisions of Corruption Act and purchased various properties. Prior to registration of the FIR, the investigating agency had called for details from the applicant herein and accordingly, on the basis of the investigation, the IO calculated the income (from 2001 to 2016-check period) of the applicant at Rs. 68,69,290/- and also assessed the value of his property at Rs. 1,51,02,460/- and drew a conclusion that the applicant possesses assets worth Rs. 82,33,170/- more than his income. 3. The applicant apprehending his arrest preferred application before the Sessions Court, Palanpur, Dist.: Banaskantha, seeking Anticipatory bail, which came to be rejected vide order dated 12.07.2018. the learned Sessions Judge, while rejecting the application observed that the offence being a grave in nature, the application is required to be rejected. 4. Heard learned counsel Premal Nanavati, assisted by Mr. Anmol Surollia, learned advocate for the applicant and Mr. Manan Mehta, learned APP for the respondent State. 5. Learned counsel Mr. the learned Sessions Judge, while rejecting the application observed that the offence being a grave in nature, the application is required to be rejected. 4. Heard learned counsel Premal Nanavati, assisted by Mr. Anmol Surollia, learned advocate for the applicant and Mr. Manan Mehta, learned APP for the respondent State. 5. Learned counsel Mr. Nanavati, submitted that the applicant is implicated deliberately in a false case of corruption with vengeance to cause untold misery upon him at the fag end of his career and now, he is retire and having an unblemished service of two decades; that the calculation of income and the disproportionate assets are done by the authority in a manner which shows non-application of mind and prejudice against the applicant; that the applicant at relevant point of time, was a primary school teacher and had cooperated in the investigation throughout; that prior to the FIR, one Jivabhai Ghelabhai submitted an application before the authority as the applicant was President of Union and there was enmity with him; that the applicant as a Primary Teacher did not have any control/power or authority over the recruitment of teachers and staff at the school and having no any bargaining power of misusing his post to take or give illegal gratifications inter-alia; that the documentary evidence provided by the applicant, is a complete explanation of his innocence. 6. On the other hand Mr. Manan Mehta, reiterating the facts of affidavit in reply filed by Mr. N.A. Chaudhary, PI ACB Police Station, Banaskantha, contended that, it is true that three times the applicant herein remained present before the authority, however, he could not provide the details of the income and as against the same, the investment and expenditure of him and therefore, on some of the issues like amount shown as loan, and payment made towards the properties, details of bank transaction, his custodial interrogation for effective investigation is necessary. In this background facts, learned APP urged that the application deserves to be dismissed. 7. Having heard the learned counsel for the respective parties and upon perusal of the material placed on record, it appears that the applicant was serving as a primary teacher in a rural area and during the course of the proceedings he retired on account of his superannuation. 7. Having heard the learned counsel for the respective parties and upon perusal of the material placed on record, it appears that the applicant was serving as a primary teacher in a rural area and during the course of the proceedings he retired on account of his superannuation. It is required to be noted that the alleged FIR being registered on the basis of the private complaint filed by one Mr. Jivabhai Ghelabhai and after filing the application, he passed away. The applicant herein appeared before the authority for 3 to 4 times and provided details of his income as well as properties purchased during the check period. In other words, he has cooperated throughout the investigation. It is settled law that the legislative intend behind the introduction of Section 438 is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from subjected to unnecessary police custody. However, the Court must also keep in view that a criminal offence is not just an offence against an individual, rather, the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights-safeguarding the personal liberty of an individual and the societal interest. 8. In view of the foregoing discussions and considering the facts and circumstances of the present case, the custodial interrogation of the applicant is not necessary and therefore, case is made out for an anticipatory bail. 9. Considering the facts and circumstances of the case and the role attributed to the present applicant in the alleged offence, I find no reason to decline pre-arrest bail to the applicant. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No. 8 of 2018 registered with ACB Police Station, Palanpur on his executing a personal bond of Rs. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No. 8 of 2018 registered with ACB Police Station, Palanpur on his executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions: (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 09.02.2022 between 11.00 a.m. and 2.00 p.m.; (c) shall 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 to any police officer; (d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change their residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the Trial Court within a week; and (g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits; 10. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 12. Rule is made absolute to the aforesaid extent. Direct service is permitted.