ORDER : 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 registered as C.R No. RC0292022A0011 of 2022 before CBI/ACB/Gandhinagar Police Station, District: Gandhinagar for the offences under Section 7 etc of the Prevention of Corruption Act. 2. An affidavit-in-reply is filed on behalf of the respondent – CBI and affidavit-in-rejoinder is also filed on behalf of the applicant. 3. Heard Mr.R. S. Sanjanwala, learned senior advocate for Mr.Bhadrish Raju, learned advocate for the applicant, Ms.Chetana Shah, learned Additional Public Prosecutor for respondent No.1 – State, Mr.R. C. Kodekar, learned Special Public Prosecutor for respondent No.2 and Mr.Devang Vyas, learned Assistant Solicitor General for the Income Tax Department. 4. Mr.Sanjanwala, learned senior advocate for Mr.Raju, learned advocate for the applicant submits that the applicant has not committed any offence and is not connected with any incident or event constituting the offence as alleged in the FIR. He submits that the applicant has not played any role in the alleged offence and even not named in the FIR and he is not connected with the allegations of the offence, despite of the same the Investigating Authority has given notice under Section 41A of the Criminal Procedure Code to the applicant informing him to appear before the authority. He submits that there is no prima facie case made out against the applicant and even none of the ingredients is satisfied so as to connect the applicant with the offence as alleged in the FIR. He also submits that the applicant is suffering from heart disease and for the same he is taking treatment and he is also suffering from high blood pressure and diabetes and, therefore, considering the medical ailments, the applicant may be released on bail. Mr.Sanjanwala, learned senior advocate for the applicant further submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary and besides the applicant will be available during the course of investigation and will not flee away from the justice. He submits that in view of the above, the applicant may be enlarged on anticipatory bail by imposing suitable conditions. He submits that in view of the above, the applicant may be enlarged on anticipatory bail by imposing suitable conditions. Learned senior advocate for the applicant on instructions states that the 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 further submits that upon filing of such application by the Investigating Agency, the right of applicant to oppose such application on merits may be kept open. He has submitted that the applicant has interrogated over three days and cooperated with the investigation and handed over every materials and mobile phone also. In support of his submissions, Mr.Sanjanwala, learned senior advocate has relied upon the decision of the Hon’ble Supreme Court in the case of Sadashiv Mahadeo Yavaluje and Gajanan Shripathrao Salokhe Vs. State of Maharashtra reported in (1990) 1 SCC 299 more particularly paragraph no.11 and the decision of the Bombay High Court in the case of Mannan Mohd Yusuf Vs. State of Maharashtra reported in 2019 SCC Online Bom 824 : (2019) 2 AIR Bom R (Cri) 991. 5. Mr.Kodekar, learned Special Public Prosecutor for respondent – CBI has opposed the grant of anticipatory bail. He submits that there is connection between the main accused and this accused, which fact has been established and Rs.30,00,000/- has been deposited by the complainant through his employee in the account of Vardhman operating with Dhara Angadia is belonging to the accused, which was utilized by them and the said amount nabbed by the ACB Police in presence of the independent witnesses, which fact is also established. He submits that in the form of oral statement, it has been established that the accused has abetted in the alleged crime and invoked Section 120B of the Indian Penal Code. He also submits that the persons of the Angadia Firm also gave the name of the present accused and, therefore, connection of the accused with the alleged crime could be proved only through the custodial interrogation. He further submits that the applicant has played active role in the crime by accepting the amount of Rs.30,00,000/- in his account Vardhman operating with Dhara Angadia Firm on behalf of main accused. He further submits that the applicant has played active role in the crime by accepting the amount of Rs.30,00,000/- in his account Vardhman operating with Dhara Angadia Firm on behalf of main accused. He submits that the investigation is in crucial stage and the applicant is not cooperating with the investigation and giving evasive reply. He submits that the applicant is involved in the alleged crime and considering the nature and gravity of the crime, the applicant may not be released on bail and the present application may be rejected. 6. Mr.Vyas, learned ASG appearing for the Income Tax Department submits that the investigation is in crucial stage and the applicant is not co-operating with the investigation and giving evasive reply. He also submits that the applicant called the person of Dhara Angadia Firm on 04.10.2022 at about 10 – 10.30 hours through whatsapp and informed him to deposit an amount of Rs.30,00,000/- in the account of Vardhman. He submits that the fact of demand and acceptance of the amount is proved. He submits that the custodial interrogation of the applicant at this stage is required and he may not be released on bail. 7. Ms.Shah, learned Additional Public Prosecutor appearing on behalf of the respondent-State has supported the arguments of Mr.Kodekar, learned SPP and Mr.Vyas, learned ASG and opposed the grant of anticipatory bail. Learned APP has submitted that the applicant has committed an offence and considering the nature and gravity of the offence, the applicant may not be released on bail and the present application may be rejected. 8. In the case of Sadashiv Mahadeo Yavaluje (supra) relied upon by learned senior counsel for the applicant, the Hon’ble Apex Court has observed in paragraph no.11 as under:- “11. As regards accused No. 2 merely because he was entrusted with some money to be passed on, to accused No. 1 it could not be held that he was guilty of any one of these offences unless it is established that he was a party to the arrangement and the arrangement arrived at was that the money would be handed over to accused No. 2 to be given over to accused No. 1. Apparently accused No. 2 was not expected to help the complainant. Apparently accused No. 2 was not expected to help the complainant. The assurance to the complainant to settle the matter, according to the prosecution was given by accused No. 1 and according to the prosecution's own case and the evidence of complainant Pandurang this arrangement was finally settled on 29-11-75 at the house of accused No. 1. Admittedly accused No. 2 was not there nor it is alleged that he had any knowledge about this settlement. The incident of 29-11-75 is said to be between accused No. 1 and Pandurang alone and the only evidence is that of Pandurang. Under these circumstances it could not be held that accused No. 2 accepted this amount for any purpose. At best as the complainant told him to pass this money on to accused No. 1 he accepted it but on that basis it could not be held that he was sharing the intention with accused No. 1 or was acting on his behalf.” 9. In the case of Mannan Mohd Yusuf (supra), the Bombay High Court has observed in paragraph no.16 to 20 as under:- “16. Thus, both these witnesses do not state that they told the appellant that amount was being payed to him for making it over to accused No. 1. Material on record does not show that appellant was aware of any criminal complaint filed against the complainant which was being investigated into by accused No. 1. It does not show that present appellant was aware of relationship or understanding between the complainant and accused No. 1. The demand made by accused No. 1 and payment of Rs. 1500/- towards its fulfillment are therefore not proved to be the facts within knowledge of present appellant. The material only demonstrates that the appellant received amount from complainant. Nature of that payment was not disclosed to appellant and knowledge of appellant about it is not brought on record. 17. Judgment of Hon'ble Apex Court reported in Sadashiv Mahadeo Yavaluje v. The State of Maharashtr a (supra) is on Section (5)(1)(d) and (2) of Prevention of Corruption Act 1947. The Hon'ble Apex Court there has found that evidence of complainant and trap witness did not establish that ingredients were satisfied. Facts there show that accused No. 1 in the said matter had instructed complainant to pay Rs. 100/- to accused No. 2. The Hon'ble Apex Court there has found that evidence of complainant and trap witness did not establish that ingredients were satisfied. Facts there show that accused No. 1 in the said matter had instructed complainant to pay Rs. 100/- to accused No. 2. On two occasions it was not paid to accused No. 2. However, after some time amount was paid to accused No. 2 and complainant alleged that it was to be paid to accused No. 1. Accused persons were convicted and their conviction was maintained by High Court. Hon'ble Apex Court found that apprehending accused No. 2 in a trap revealed failure of trap against accused No. 1. It is further observed that there was no evidence against accused No. 1 except the story given out by complainant. As regards accused No. 2, Hon'ble Apex Court found that merely because he was entrusted with some money to be passed on the accused No. 1, it could not be held that he was guilty of any one of the offences unless it was established that he was party to the alleged understanding arrived at between complainant and accused No. 1. Hon'ble Apex Court also found that arrangement if any was between accused No. 1 and complainant and accused No. 2 was not party to it. 18. Facts of matter at hand are identical. Here complainant or panch witness PW-3 do not depose that they informed the appellant that Rs. 1500/- was being deposited with him for its transmission to deceased accused No. 1. In this respect, perusal of Section 12 of 1988 Act becomes essential. It contemplates abetment of any offence punishable under 1988 Act. Hon'ble Apex Court has in the matter of Central Bureau of Investigation v. Shukla reported in (1998) 3 SCC 410 considered the provisions of section 12 of Prevention of Corruption Act 1947. Relevant discussion is contained in paragraph No. 50 and 51. Hon'ble Larger Bench of Apex Court finds that as “abetment” is not defined under Prevention of Corruption Act, it has to refer to its exhaustive definition in Section 107 of Penal Code, 1860. Discussion by Hon'ble Court shows that for first two clauses of Section 107 of Penal Code, 1860, it it not necessary that offence instigated should have been committed. Discussion by Hon'ble Court shows that for first two clauses of Section 107 of Penal Code, 1860, it it not necessary that offence instigated should have been committed. While considering clause (iii) of Section 107, Hon'ble Apex Court took aid of explanation of (2) and arrived at findings that when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence. Said paragraph No. 50 reads as under:— “Undoubtedly for a person to be guilty thereunder it is not necessary that the offences mentioned therein should have been committed pursuant to the “abetment”. Since “abetment” has not been defined under the Prevention of Corruption Act we may profitabley refer to its exhaustive definition in Section 107 of the Penal Code, 1860. As per that Section a person abets the doing of a thing when he does any of the acts mentioned in the following three clauses; (i) instigates any person to do that thing, or (ii) engages with one or more other person or persons in any conspiracy for the doing of that thing …….., or (iii) intentionally aids, by any act or illegal omission, the doing of that thing. So far as the first two clauses are concerned it is not necessary that the offence instigated should have been committed. For understanding the scope of the word “aid” in the third clause it would be advantageous to see Explanation 2 in Section 107 I.P.C. which reads thus: “Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does any thing in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.” It is thus clear that under the third clause that when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence. In other words, unlike the first two clauses the third clause applies to a case where the offence is committed”. 19. These observations of Hon'ble Apex Court also apply in present facts. It was never the case of prosecution that the appellant instigated complainant to pay bribe or then engaged himself and conspired to facilitate receipt of bribe. In fact there is no charge of conspiracy at all. 19. These observations of Hon'ble Apex Court also apply in present facts. It was never the case of prosecution that the appellant instigated complainant to pay bribe or then engaged himself and conspired to facilitate receipt of bribe. In fact there is no charge of conspiracy at all. The only remaining part therefore, is of aiding and, the provisions of Clause-III of section 107 show that aiding has to be with intention. Facts necessary to demonstrate that the appellant was dwelling under such intention are not brought on record. Prosecution has only established the payment of Rs. 1500/- by complainant to appellant. However, its nature as bribe could not be established. 20. I therefore find conviction of appellant under Section 12 of Prevention of Corruption Act, 1988 unsustainable.” 10. As per the prosecution case, the complainant deposited an amount of undue advantage of Rs.30,00,000/- with an Angadia Firm on 04.10.2022 as directed by main accused. As per the affidavit of concerned Investigating Officer and more particularly paragraph no.6 thereof, it reveals as under: “6. That during investigation it has been revealed by Shri Smit Thakkar of Dhara Angadia Firm that “Vardhman” is the account of Shri Malav Ajitbhai Mehta applicant. Further, Shri Smit Thakkar disclosed that Shri Malav Ajitbhai Mehta called him on 04.10.2022 at about 10-10.30 hours through whats-App call and informed him that an amount of Rs.30,00,000/- would be deposited in the account of “Vardhman” and same may be taken. Further, Shri Smit Thakkar disclosed that this amount of Rs.30,00,000/- was to be given to a person on the same day i.e. 04.10.2022 as directed by Shri Malav Ajitbhai Mehta after receipt of the said amount. However, after receipt of the said amount from Shri Rupesh Brahmbhatt – complainant and before he could convey to Shri Malav Mehta about the receipt of Rs.30,00,000/- the ACB team recovered the said amount and seized the same.” 11. I have perused the materials available on record and considered the submissions canvassed by the learned counsel appearing on behalf of the respective parties. So far as the allegation made against the applicant is that he has joined in hands with the main accused and for him, he is using the account in the name of Vardhman operating with Dhara Angadia Firm and has accepted the amount of illegal gratification on behalf of accused no.1. So far as the allegation made against the applicant is that he has joined in hands with the main accused and for him, he is using the account in the name of Vardhman operating with Dhara Angadia Firm and has accepted the amount of illegal gratification on behalf of accused no.1. Considering the fact that the applicant has neither made any transaction with accused no.1 nor he has transacted with the complainant and even as per the prosecution case, the amount which was deposited in the account of the applicant, has not been withdrawn nor he has accepted the same as illegal gratification on behalf of accused no.1. It appears that the applicant is a businessman and has no any other criminal antecedents. Even the applicant has not played any vital role in the crime. That the presence of the applicant can very much secure and he will not likely to tamper or hamper with the case of the prosecution in any manner. So far as the allegations made in the FIR is concerned, the applicant has not played any role, except merely his named was subsequently culled out being an owner of the Vardhman account wherein the alleged amount of illegal gratification was deposited by the complainant. Considering all these aspects, the application deserves consideration. 12. Having regard to the prosecution case, the applicant could not be conveyed about the receipt of Rs.30,00,000/- as ACB recovered the said amount and seized the same from the Dhara Angadia Firm. Having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, affidavit-in-reply and the affidavit-in-rejoinder, without discussing the evidence in detail, at this stage, this Court is inclined to grant anticipatory bail to the applicant. 13. This Court has considered following aspects; (i) The FIR is registered on 12.10.2022 for the offence which is alleged to have taken place on 04.10.2022. (ii) Considering the fact that the applicant is protected against arrest vide order dated 25.10.2022 which has continued from time to time. (iii) Learned APP under instructions of IO is unable to bring on record any special circumstances against the applicant. (ii) Considering the fact that the applicant is protected against arrest vide order dated 25.10.2022 which has continued from time to time. (iii) Learned APP under instructions of IO is unable to bring on record any special circumstances against the applicant. (iv) The role attributed to the applicant – accused; (v) That the applicant is a businessman and no any other criminal antecedents against him; (vi) There is creating serious doubt about demand and acceptance of the amount; (vii) There is no discovery or recovery from the applicant; 14. This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Shri Gurubaksh Singh Sibbia & Ors., reported at (1980) 2 SCC 665 and in the case of Sushila Aggarwal Vs. State (NCT of Delhi) reported in AIR 2020 SC 831 . 15. In the case of Sushila Aggarwal Vs. State (NCT of Delhi) reported in AIR 2020 SC 831 , the Hon’ble Supreme Court has held and observed in paragraph no.91 as under:- “This court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC: (1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565 when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest. (2) It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail. (3) Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed. (4) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court. (5) Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. (5) Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. (6) An order of anticipatory bail should not be blanket in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence. (7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail. (8) The observations in Sibbia regarding limited custody or deemed custody to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya. (9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. (10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities. (10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities. (11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr, (2011) 6 SCC 189 ; Jai Prakash Singh (supra) State through C.B.I. vs. Amarmani Tripathi, (2005) 8 SCC 21 ). This does not amount to cancellation in terms of Section 439 (2), Cr. PC. (12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors, 2011 (1) SCC 694 (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra, ( 1996 (1) SCC 667 ) and subsequent decisions (including K.L. Verma v. State & Anr, 1998 (9) SCC 348 ; Sunita Devi v. State of Bihar & Anr, 2005 (1) SCC 608 ; Adri Dharan Das v. State of West Bengal, 2005 (4) SCC 303 ; Nirmal Jeet Kaur v. State of M.P. & Anr, 2004 (7) SCC 558 ; HDFC Bank Limited v. J.J. Mannan, 2010 (1) SCC 679 ; Satpal Singh v. the State of Punjab, 2018 SCC Online (SC 415 and Naresh Kumar Yadav v Ravindra Kumar, 2008 (1) SCC 632 ) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled. 16. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as C.R No. RC0292022A0011 of 2022 before CBI/ACB/Gandhinagar Police Station, District: Gandhinagar, the applicant shall be released on bail on furnishing a personal bond of Rs. 16. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as C.R No. RC0292022A0011 of 2022 before CBI/ACB/Gandhinagar Police Station, District: Gandhinagar, the applicant shall be released on bail on furnishing a personal bond of Rs. 15,000/- (Rupees Fifteen Thousand only) with one surety of like amount on the following conditions that the applicant shall : (a) cooperate with the investigation and make available for interrogation whenever required; (b) remain present at concerned CBI/ACB Police Station on 22.12.2022 between 11.00 a.m. and 2.00 p.m.; (c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer; (d) 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) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders; (f) not leave India without the permission of the 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; 17. 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. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute. Direct service is permitted.