Dhaneshkumar Chandrakantbhai Vankani vs State Of Gujarat

A. S. Supehia, J

1) Heard the learned advocates for the respective parties through video conferencing.

2) By way of the present application filed under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in

connection with FIR being C.R. No.11185003201182 of 2020 registered with Kalyanpur Police Station, District Devbhumi Dwarka for the offence

under Section 379 of the Indian Penal Code, 1860 (the “IPCâ€) as well as Sections 4(1), 4(1)A, 21(1) and 22 of the Mines and Minerals

(Development and Regulation) Act, 1957 (Amended 2015) and Sections 3, 7 and 21(2) of the Gujarat Minerals (Prevention of Illegal Mining and

Transportation and Storage) Rules, 2017.

3) The case of the prosecution, in brief, is that the applicant along with other co-accused have undertaken illegal mining at Kenedi Village, Revenue

Survey No.590, which belongs to the State Government, and committed a theft of Rs.4,50,24,075/- of minerals.

4) At the outset learned advocate for the applicant has submitted that the applicant is not even named in the FIR and one of the main accused i.e.

Jethabhai Vajshi Varu, against whom the allegation of profiteering from the illegal mining is there, has been released by the trial court on anticipatory

bail vide order dated 11.12.2020 passed in Criminal Misc. Application No.118 of 2020. He has submitted that as per the case of the prosecution the

applicant was working as a Supervisor in the office of Ramabhai Nathabhai i.e. accused No. 5.

5) Learned advocate for the applicant has further submitted that the nature of allegations are such for which custodial interrogation of the applicant at

this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation, as well as in the trial

also and will not flee from justice.

6) Learned 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 anticipatory bail.

7) Learned APP, while placing reliance on a report of the Investigating Officer, has submitted that the applicant is directly involved in the illegal mining

and since he was working as a Supervisor in the office of Ramabhai Nathabhai i.e. accused No.5, he was equally responsible for the offence and

hence, the applicant may not be enlarged on anticipatory bail looking to the nature and gravity of the offence.

8) 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

anticipatory bail to the applicant.

9) This Court has considered the following aspects;

(a) The role attributed to the applicant;

(b) The applicant is not even named in the FIR;

(c) Sole accused Jethabhai Vajshi Varu, who is named in the FIR, has been released by the trial court on anticipatory bail vide order dated 11.12.2020

passed in Criminal Misc. Application No.118 of 2020;

(d) The nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary.

10) 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.

11) 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.11185003201182 of 2020 registered with Kalyanpur Police Station, District Devbhumi Dwarka 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 19.07.2021 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.

12) 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 it 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. 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 anticipatory bail order.

13) At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

14) The application is allowed in the aforesaid terms. RULE is made absolute to the aforesaid extent.

15) Registry is directed to intimate the concerned authority/Court about the present order by sending a copy of this order through Fax message, email

and/or any other suitable electronic mode.

16) Learned advocate for the applicant is also permitted to send a copy of this order to the concerned authority/Court through Fax message, email

and/or any other suitable electronic mode.