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Gujarat High Court · body

2022 DIGILAW 585 (GUJ)

Hiteshbhai Natubhai Parmar v. State Of Gujarat

2022-04-26

A.S.SUPEHIA

body2022
ORDER : 1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in connection with the FIR being C.R.No.11204046201974 of 2020 registered with Nadiad Town Police Station, District Kheda for the offences under Sections 406, 420, 114, 409, 467, 468 and 471 of the Indian Penal Code, 1860. 2. The brief facts are that an application dated 27.11.2020 was preferred by the Police Inspector, Nadiad Town Police Station to insert Section 409 of the IPC in the FIR along with other above mentioned provisions of the Indian Penal Code. By an order dated 05.12.2020 passed by the Chief Judicial Magistrate, Nadiad, Section 409 of the IPC came to be added in the FIR being CR No.11204046201974 of 2020, lodged on 26.11.2020 with Nadiad Town Police Station, Kheda. Thereafter, another application dated 27.12.2020 was preferred by the Police Inspector, Nadiad Town Police Station to insert Sections 467, 468, 471 of the IPC, which came to be added by an order dated 08.01.2021 passed by the Chief Judicial Magistrate, Nadiad in the said FIR being no. - 11204046201974 of 2020, lodged on 26.11.2020 with Nadiad Town Police Station, Kheda. 2.1 It is the case of present applicant that he was appointed as a peon on compassionate appointment on 07.02.2000 and since then, he has been working with Nadiad Nagarpalika. It is to be stated that though the applicant was appointed as a peon, he was at times also supposed to do the duties of some employee on oral instructions of the Tax Superintendent, Nadiad Nagarpalika. It is stated during the duration of occurrence of the alleged offence the applicant, on oral instructions of the Tax Superintendent, Nadiad Nagarpalika, was performing his duty as a clerk to the employee appointed for the tax collector, and under his duty as clerk to tax collector, he was supposed to sign the receipts, which are generated by the tax collector. 3. Learned senior advocate Mr.Unwalla, has submitted that pursuant to the order passed by this Court on 26.08.2021, the applicant has deposited an amount of Rs.2,50,000/- before the Trial Court. Learned senior advocate for the applicant has further submitted that the applicant is ready and willing to deposit further amount of Rs.4,00,000/-. 3. Learned senior advocate Mr.Unwalla, has submitted that pursuant to the order passed by this Court on 26.08.2021, the applicant has deposited an amount of Rs.2,50,000/- before the Trial Court. Learned senior advocate for the applicant has further submitted that the applicant is ready and willing to deposit further amount of Rs.4,00,000/-. 3.1 Learned senior advocate for the applicant has submitted that the applicant herein was only acting as a clerk to the tax collector (on instructions of the Tax Superintendent) and hence, was only affixing signature on the receipt, which was prepared and generated by the authority in-charge to the collect tax. It is submitted that as per the affidavit of the investigating officer out of 12 witnesses, not a single statement has been made against the present applicant. It is submitted that all the records, which are alleged to be forged, are in possession of the complainant Tax Superintendent in the office of Nadiad Nagarpalika Property Tax Department to which the present applicant has no access to, hence there is no question of tempering of evidence and therefore, it is submitted that, the applicant may be enlarged on anticipatory bail. 3.2 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 the applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submits that considering the above facts, the applicant may be granted bail. 4. Vehemently opposing the present application filed by the applicant, learned advocate Mr.Varandani, appearing for the complainant has submitted that when the Nagarpalika realized that the present applicant is involved in the offence with the accused, who are named in the FIR, the receipts which were issued by the present applicant were collected and it was found that the alleged receipts were issued by the present applicant, who is working in the Nagarpalika as Tax Operator. He has submitted that subsequently, the offence under Section 467 of the IPC is also registered against the present applicant. He has submitted that subsequently, the offence under Section 467 of the IPC is also registered against the present applicant. He has placed reliance on the statements of some of the witnesses and has submitted that the statement of the witnesses, in fact, reflect that the present applicant has issued forge receipts and collected amount. Thus, this application may not be entertained. 5. On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent– State has opposed grant of bail looking to the nature and gravity of the offence. He has, on instructions of the concerned Investigating Officer who is present before this Court, submitted that the statements of the co-accused reveal that the applicant has equally shared the money by issuing the orged receipts. He has submitted that the Investigating Officer has collected the receipts bearing the signature of the present applicant. It is submitted that the investigation is over. Thus, looking to the seriousness of the offence, this application may not be entertained. 6. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant bail to the applicant. 7. This Court has considered following aspects; (a) that initially, the applicant was not named in the FIR; (b) that the applicant is ready and willing to deposit an amount of Rs.4,00,000/- over and above the amount of Rs.2,50,000/- which was already deposited by him; (c) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary at this stage; (d) it is not in dispute that the investigation is over and the applicant was not initially named in the FIR and there is no allegations against the present applicant. (e) the co-accused, who are named in the FIR, are already released on regular bail and all the documentary evidences are also collected by the Investigating Officer. 8. This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312 . 9. In the result, the present application is allowed. 8. This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312 . 9. 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 FIR being C.R.No.11204046201974 of 2020 registered with Nadiad Town Police Station, District Kheda, on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he : (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at the concerned Police Station on 02.05.2022 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 his residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week. (g) shall deposit an amount of Rs.4,00,000/- within a period of four weeks before the Trial Court. 10. Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide if on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the 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 concerned 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 bail order. 11. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order. 12. The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. 13. Registry is directed to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.