Babubhai Keshabhai Prajapati vs State Of Gujarat

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants­accused have prayed for anticipatory bail in connection with the FIR being C.R. No. I- 2/2019 registered with Valsad and Dang ACB Police Station, Valsad for the offenses punishable under Sections 409, 465, 466, 467, 471, 476(A), 120(B), 109 and 34 of the Indian Penal Code and under Section 13(1)(a) and 13(2) of the Prevention of Corruption Act.

2. Learned advocate, Mr. H.A. Dave, under the instructions of the applicants, has shown willingness to jointly deposit 50% of the alleged amount of misappropriation within a period of four weeks before the concerned trial Court, without prejudice to their rights and contentions and the applicants shall file an undertaking within a period of one week to that effect.

R/CR.MA/2432/2019 ORDER

3. Learned advocate for the applicants submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicants will keep themselves available during the course of investigation, trial also and will not flee from justice.

4. Learned advocate for the applicant on instructions states that the applicants are 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 their remand. He further submit that upon filing of such application by the Investigating Agency, the right of applicants accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicants may be granted anticipatory bail.

5. At this stage, learned APP Mr. Raval seeks permission to withdrawn the averments made in Paragraph Nos.3.5 and 3.6 of the affidavit­in­ reply filed on behalf of the respondent and, hence, the permission, as prayed for, is granted.

6. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail and pointed out from the affidavit in reply filed by the concerned IO that the applicant was serving as Field Supervisor with the Gujarat Land Development Corporation at the relevant point of time. It is submitted that though "Sim Talavadi" is not constructed, in Page 2 of 5 R/CR.MA/2432/2019 ORDER connivance with other co­accused, the applicant has prepared documents and got an amount of Rs.4,30,589/­ on the basis of the said forged documents and thereby misappropriated the said amount in connivance with other co­accused. It is, therefore, urged that this application may not be entertained.

7. 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 and in view of the fact that the applicants have shown his willingness to jointly deposit 50% of the alleged amount of misappropriation before the trial court within a week, I am inclined to grant anticipatory bail to the applicants without going further merits of the matter and allegations leveled against hem .

8. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 665.

9. In the result, the present application is allowed.

The applicants are ordered to be released on bail in the event of their arrest in connection with a FIR being C.R. No. I-2/2019 registered with Valsad and Dang ACB Police Station, Valsad on their Page 3 of 5 R/CR.MA/2432/2019 ORDER 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 themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 01.03.2019 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 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;

(h) shall jointly deposit 50% of the alleged misappropriation amount before the trial court within one week from today and shall file an undertaking before the trial court to this effect by Monday;

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. 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.

(VIPUL M. PANCHOLI, J.) Gautam Page 5 of 5