Balubha Satubha Jadeja vs State Of Gujarat

Ashutosh J. Shastri, J

RULE. Learned APP Mr. J.K. Shah waives service of Rule for and on behalf of the respondent-State.

This application under Section 438 of the Code of Criminal Procedure is filed seeking anticipatory bail in connection with the FIR, being C.R.

No.11201017200003 of 2020 registered with CID Crime Border Zone Police Station, Kutchh â€" Bhuj for the offences punishable under Sections 409,

406, 465, 467, 468, 471 and 120-B of the Indian Penal Code.

Learned advocate Ms. Kruti Shah has submitted that the applicant is wrongly arraigned in the prosecution and he has not played any active role in

the alleged crime and he was merely a member of the committee and almost all the accused persons including President, Secretary, other committee

members and the bank officers are enlarged on bail. She has submitted that in this case, the charge-sheet has already been filed before the concerned

Court and the entire case is based on the documentary evidence and in absence of any specific allegation against the applicant, no custodial

interrogation is required. In fact, Lavad Suit was also filed and as such, looking to the assertion of the complaint, more particularly, the same having

been filed at much belated stage for the alleged offence from 1.1.2003 to 31.3.2019, for which the complaint is filed at a much belated stage only on

17.1.2020, without there being any explanation on delay and as such, considering this overall material on record, Ms. Shah has submitted that the

nature of allegations are such where arrest of the applicant is not required. In fact, the applicant is not likely to misuse the liberty nor would like to flee

away from the justice. Hence, the case be considered. Additionally, Ms. Shah has submitted that in connection with this very FIR, one another

member of the committee, exactly similarly situated to the applicant, is enlarged on anticipatory bail. The said co-accused person is named as

Daulatsinh Dhirubhai Jadeja and as such, considering this overall set of circumstance, the applicant may be granted anticipatory bail under Section 438

of the Cr.P.C.

Learned advocate Mr. Dhruraj Rana appearing on behalf of the Bank was allowed with consent to assist learned APP and he submitted that

serious offence is committed but he candidly submitted that the co-accused, named above, has already been granted anticipatory bail. Hence, Mr.

Rana has left the matter to the discretion of this Court. Mr. Rana has requested that he may be permitted to file Vakalatnama with consent of learned

advocates for the parties. Such permission is granted.

As against the aforesaid submissions, learned APP Mr. J.K. Shah has submitted that serious crime is committed by the accused persons, including

the present applicant. In fact, there is embezzlement of fund of the bank in a systematic design and therefore, no discretion be exercised. However,

since the co- accused person has already been enlarged on anticipatory bail under Section 438 of the Code, ultimately, he left the matter to the

discretion of this Court since it appears that the role played by the accused persons is similar to that of another accused who was granted anticipatory

bail in Criminal Misc. Application No.9693 of 2020.

Having heard learned advocates for the parties and having perused the material on record, looking to the nature of the allegations, gravity of the

offence and the role attributed against the applicant, coupled with the decision relied upon by learned advocate, without much discussing the evidence

at this stage in detail, the Court is inclined to consider the request for grant of anticipatory bail, particularly when the co-accused of having similar role

has been granted anticipatory bail vide order dated 5.8.2020 passed in Criminal Misc. Application No.9693 of 2020.

This Court has considered following aspects;

(i) The charge-sheet has been filed;

(ii) The Lavad Suit has been filed for the recovery of the amount;

(iii) That other co-accused are enlarged on bail;

(iv) That the amount was withdrawn by the President and the Secretary;

(v) No any amount has been withdrawn by the applicant;

(vi) The entire prosecution case is based on the documentary evidence;

(vii) There is no chance of tampering with the evidence and influence the witness as the case is based on the documentary evidence.

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.

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. 11201017200003 of 2020 before CID Crime Border Zone Police Station, District: Kachchh - Bhuj, the applicant shall be released on bail on

furnishing a personal bond of Rs. 10,000/- (Rupees Ten 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 Police Station on 17.08.2020 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;

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. 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.

Registry is directed to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode. Learned

advocate for the applicant is also permitted to intimate about this order to the concerned authorities through fax, email and/or any other suitable

electronic mode.