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2024 DIGILAW 138 (GUJ)

Shankardan Keshubhai Langa v. State Of Gujarat

2024-01-18

M.R.MENGDEY

body2024
ORDER : 1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R.NO. 11216008230197 of 2023 registered with Gandhinagar Sector 7 Police Station, Gandhinagar. 2. Learned Senior Advocate appearing on behalf of the applicant submits that initially, the FIR came to be lodged for the offences punishable under Sections 409, 168, 193, 196, 465, 467, 468, 471 and 120(B) of the Indian Penal Code, 1860 (herein after referred to as the “Code”) and Sections 13(1)(a), 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988 (herein after referred to as the “Act”). However, after investigation, the Investigating Agency has filed charge-sheet and the applicant has been charge-sheeted for the offence punishable under Sections 409 and 219 of the Code and Sections 13(1)(a), 13(1)(b) and 13(2) of the Act . The applicant has not been charge-sheeted for any other offences mentioned in the FIR. The applicant has been arrested in connection with the present offence on 11.07.2023 and since then the applicant is in custody. 2.1 Learned Senior Advocate for the applicant has submitted that the incident alleged in the FIR had taken place between the period 06.04.2018 and 30.09.2019 for which the FIR came to be lodged on 17.05.2023. Thus, the FIR has been lodged after considerable delay for which no explanation is coming forth. 2.2 Learned Senior Advocate for the applicant has submitted that the the property in question was not put to his personal use by the present applicant, and therefore, the ingredients as mentioned in Section 405 of the Code are not made out against the present applicant, and therefore, the offence punishable under Section 409 of the Code is also not made out against him. 2.3 Learned Senior advocate for the applicant has submitted that the order, which was passed by the present applicant exercising his powers as a Collector, Gandhinagar was passed by him in the Year-2019. The said order appears to be the basis for the present FIR. The said order, if as per the case of the prosecution, was not tenable in law, the same ought to have been taken in review by the State Authorities, however, till date, the said order has not been take in review and the order passed by the applicant has attained the finality. The said order, if as per the case of the prosecution, was not tenable in law, the same ought to have been taken in review by the State Authorities, however, till date, the said order has not been take in review and the order passed by the applicant has attained the finality. Thus, the basis for lodging the present FIR appears to be not germane to law. There is no material whatsoever on record indicating about any demand of illegal gratification by the present applicant nor there is any sufficient material indicating about the acceptance of illegal gratification by the present applicant. 2.4 Learned Senior Advocate for the applicant has submitted that so far as the aspect of disproportionate assets of the present applicant are concerned, the same find no reference in the entire charge-sheet. The prosecution seeks to rely upon the statement of witness Rajendra Gahdavi, who in his initial statement does not say about the payment of illegal gratification to the present applicant. However, in subsequent second statement dated 23.07.2023, he states that he had paid sum of Rs.85 lacs to the present applicant. If the said witness had really paid amount of Rs.85 lacs to the present applicant towards illegal gratification, he had no reason not to intimate about the same in his first statement given to the police authorities. Thus, the statement of this witness dated 23.07.2023 appears to have been extorted from him by the police. There is no prima facie case against the present applicant for commission of the offence in question. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions. 3. Learned Additional Advocate General appearing on behalf of the respondent-State has opposed grant of regular bail by submitting that the order, which is subject matter of the present FIR was fraudulent order passed by the present applicant intentionally for some illegal gratification. The land in question for which the said order was passed was an unnumbered land belonging to the State Government. The present applicant, by his order, had allotted the said parcel of land to the person, who was not an agriculturist and had done so with an intention of getting some illegal gratification. The land in question for which the said order was passed was an unnumbered land belonging to the State Government. The present applicant, by his order, had allotted the said parcel of land to the person, who was not an agriculturist and had done so with an intention of getting some illegal gratification. 3.1 Learned Additional Advocate General has submitted that vide order dated 29.04.2010, the Mamlatdar concerned had rejected the claim of an interested person in the land in question. The said order passed by the Mamlatdar was confirmed by the Deputy Collector vide order passed in the Year- 2014, and thereafter, the said orders passed by the Deputy Collector and Mamlatdar were carried in appeal to the Collector, who in turn had remanded the proceedings to the Deputy Collector and even after remand, the Deputy Collector had rejected the claim of the interested person in the said land. The said order came to be passed in the Year-2015, however, thereafter, in the Year-2019, when the present applicant was working as a Collector, Gandhinagar, he had taken the order passed by the Deputy Collector in the Year-2015 in suo-motu revision under Section 211 of the Bombay Land Revenue Code and had passed the order in question benefiting the interested person for illegal gratification. 3.2 Learned Additional Advocate General has submitted that witness - Sureshbhai Vijaydan Gadhavi, who happens to be a brother in law of the present applicant states in his statement dated 24.07.2023 that around 10 to 12 days prior to retirement of the present applicant on 30.09.2019, the present applicant had informed him that Rajendra Hemubhai Gadhavi, Amarsing Raba and one another person would come to him and pay him Rs.85 lacs in cash. The applicant had given the address of this witness to the said persons. Accordingly, those persons had come to him and they had paid Rs.85 lacs in cash as intimated by the present applicant to him. The said witness had counted the said money and it was found to be Rs.85 lacs. Thus, the present applicant has received Rs.85 lacs towards illegal gratification from the interested persons has been established beyond reasonable doubt at this stage. The said witness had counted the said money and it was found to be Rs.85 lacs. Thus, the present applicant has received Rs.85 lacs towards illegal gratification from the interested persons has been established beyond reasonable doubt at this stage. Therefore, even if the statement of witness – Rajendra Gadhavi dated 23.07.2023 is kept aside or not believed, there is sufficient material available on record to indicate that the present applicant had received sum of Rs.85 lacs in cash toward illegal gratification from the said Rajendra Gahdavi. Thus, the transaction of give and take of illegal gratification was complete and once the present applicant had instructed his brother in law to accept the money from the interested persons, the demand of illegal gratification at the hands of the present applicant is also sufficiently proved at this stage. 3.3 Learned Additional Advocate General has submitted that in the Year-2022, the applicant came to be granted anticipatory bail in another offence by the Sessions Court, Godhara. In the order enlarging the present applicant on anticipatory bail, the condition was imposed by the present applicant to remain present before the Investigating Officer for the purpose of investigation. However, the present applicant did not remain present before the Investigating Officer and with the help of police personnel, had forged certain documents showing that the present applicant was present before the Investigating Officer though had actually not remained present before the Investigating Officer. Therefore, if the present applicant is ordered to be enlarged on regular bail in this offence also, in all likelihood, the applicant shall temper with the evidence with the help of the police personnel. 3.4 Learned Additional Advocate General has submitted the concerned Police Personnels are being dealt with departmentally and departmental proceedings have also been initiated against those police officers. 3.5 Learned Additional Advocate General has submitted that the applicant is at the flight risk, as the other members of the present applicant, who also appear to be involved in commission of the offence in question have left the country. 3.6 Learned Additional Advocate General has submitted that from the place where the present applicant was residing while absconding, certain documents like passport, jewelleries and hard cash were found. Therefore, there is a reason to believe that the applicant was in all readiness to flee from the country. 3.6 Learned Additional Advocate General has submitted that from the place where the present applicant was residing while absconding, certain documents like passport, jewelleries and hard cash were found. Therefore, there is a reason to believe that the applicant was in all readiness to flee from the country. 3.7 Learned Additional Advocate General submits a list of the properties owned by the present applicant as well as his other family members. The value of the said properties exceeds Rs.18 crores which is much beyond the known source of income of the present applicant. 3.8 Learned Additional Advocate General has submitted that the order in question which is the basis for lodging the FIR has not attained the finality and the government has decided to take the said order in review and the process for the same is also going on. 3.9 Learned Additional Advocate General has submitted that the prosecution has cited only 29 witnesses in the charge-sheet, and therefore, the trial is also not likely to take any longer time. He, therefore, submitted to dismiss the present application. 4. In rejoinder, learned Senior Advocate appearing for the applicant has submitted that the passport of the present applicant, which was found from the place where the applicant was staying did not bear any VISA, and therefore, it cannot be said that the applicant is at a flight risk. So far the list of the properties owned by the present applicant and his family members is concerned, the said list does not from part of the charge-sheet, and therefore, no cognizance of the said material can be taken at this stage. 4.1 Learned Senior Advocate appearing for the applicant has submitted that the police had recorded the statements of the witnesses through coercion, and therefore, these statements can also not be relied at this stage. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions. 5. Heard learned advocate for the parties and perused the material available on record. In present case, the FIR came to be lodged on 17.05.2023 for the irregularities allegedly committed by the present applicant while he was posted as Collector, Gandhinagar for the period commencing from 06.04.2018 to 30.09.2019. From the record, it appears that certain irregularities had come to the notice of the State Government, and therefore, the State Government had assigned a preliminary inquiry. From the record, it appears that certain irregularities had come to the notice of the State Government, and therefore, the State Government had assigned a preliminary inquiry. The Inquiry Officer, after detailed preliminary inquiry, had found some substance to the effect that the present applicant had misused his position for his personal gain and had passed several orders against the provisions of law and on the basis of the report of the preliminary inquiry dated 06.04.2023, the present FIR has been lodged. The present FIR pertains to land admeasuring 30,431 Sqr.Mtrs. situated at Village: Pethapur, Tal:Gandhinagar, Dist: Gandhinagar. The present applicant while acting as Collector, Gandhinagar had exercised the powers under Section 37(2) of the Bombay Land Revenue Code and had held the said land to be belonging to the private persons though as per the revenue record, the said land was unnumbered and belonged to the State Government. From the record, it also appears that in the Year-2014, the interested persons had applied to the Mamlatdar for holding that the land belonged to them, however, the Mamlatdar, vide order passed by him in the Year-2014 had rejected the claims made by the said persons. Against the said order passed by the Mamlardar, the said interested persons had filed an appeal before the Deputy Collector. The Deputy Collector had also rejected the claim of the said persons against which, the said persons had approached the Collector. The Collector, after hearing the parties, had remanded the proceedings to the Deputy Collector and even after remand, the Deputy Collector, in the Year-2015 had again rejected the claim of the said interested persons. In the Year- 2019, the applicant had taken the order of the Deputy Collector, which was passed in the Year-2015 in suo-motu revision under Section 211 of the Bombay Land Revenue Code and had held the land to be belonging to the said interested person. As per the allegations, the present applicant had done so for some personal gain of illegal gratification. The prosecution seeks to rely upon the statement of one Rajendrabhai Hemubhai Gadhavi. The said witness, in his statement dated 23.07.2023 has stated that in the month of August-2019, the matter was discussed with the present applicant and the present applicant had agreed to pass an order in favour of the interested persons if they paid sum of Rs.1 crore towards illegal gratification to him. The said witness, in his statement dated 23.07.2023 has stated that in the month of August-2019, the matter was discussed with the present applicant and the present applicant had agreed to pass an order in favour of the interested persons if they paid sum of Rs.1 crore towards illegal gratification to him. After some negotiation, the amount was settled at Rs.85 lacs, and thereafter, the applicant had passed the disputed order dated 13.09.2019, and thereafter, on 18.09.2019, he had paid sum of Rs.85 lacs to the Son in Law of the present applicant viz. Sureshbhai Gadhavi. 6. It is the case of the present applicant that the Rajendrabhai Hemubhai Gadhavi had given the statement before the police on 19.07.2023 also, wherein he has not stated anything about payment of illegal gratification to the present applicant. However, the record further indicates that the Investigating Agency has recorded the statement of one Sureshbhai Vijaydan Gadhavi, who happens to be the brother in law of the present applicant. This witness, in his statement, has stated that the present applicant was due to retire from service with effect from 30.09.2019 and about 10 to 12 days prior there to, the present applicant had called him up and had informed him that one Rajendra Hemubhai Gadhavi, Amarsing Raba and one another person would come and pay Rs.85 lacs in cash to him and the applicant had given address of Sureshbhai Hemubhai Gadhavi to the said persons. Accordingly, the said persons had gone to this witness Sureshbhai Vijaydan Gadhavi and had paid Rs.85 lacs in cash to him. Thus, even if the statement of Rajendra Gadhavi dated 23.07.2023 is not believed, the fact remains with the sum of Rs.85 lacs was received in cash by witness Sureshbhai Vijaydan Gadhavi on behalf of present applicant. In that case, it is is for the present applicant to explain as to what this amount of Rs.85 lacs meant for. No such explanation is coming forth from the entire record. The applicant, who was working on the responsible post of Collector, was expected to act in the interest of the State and public at large and ought not to have passed the order dated 13.09.2019 which is the subject matter of the present FIR. By the said order, the applicant has allotted the land admeasuring 30,431 Sqr.Mtrs. The applicant, who was working on the responsible post of Collector, was expected to act in the interest of the State and public at large and ought not to have passed the order dated 13.09.2019 which is the subject matter of the present FIR. By the said order, the applicant has allotted the land admeasuring 30,431 Sqr.Mtrs. to be belonging to the interested person though from the revenue record, the land belonged to the State Government. Thus, the present applicant prima facie appears to have acted contrary to the interest of the State and the public at large for personal gains. The record further indicates that the present applicant while acting as Collector, Gandhinagar has passed several other controversial orders exercising his powers as Collector and separate FIRs have also been lodged with regard to the said orders. 7. The record also indicates that the applicant came to be granted anticipatory bail by the Sessions Court, Godhara in one of the offences registered against him. While ordering him to enlarge on anticipatory bail, the concerned Court had imposed condition of marking his presence before concerned Investigating Officer. The applicant had not complied with the said condition and had not remained present before the concerned Investigating Officer. However, the applicant in collusion with certain police officers, had created some forged documents to show that he had remained present before the concerned Police Authorities. This conduct on the part of the present applicant is not befitting an officer, who had retired from the post of Collector of the District. 8. For the foregoing reasons, this Court is not inclined to exercise its discretion in favour of the present applicant. Hence, the present application stands dismissed.