Prakashbhai Ramanbhai Oad vs State Of Gujarat

A.S. Supehia, J

Heard the learned advocates for the respective parties.

RULE. Learned Additional Public Prosecutor waives service of notice of rule for and on behalf of respondent – State.

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.11214031212498 of 2021 registered with Mahuva Police Station, District Surat for the offences under Sections 379 and 114 of the Indian Penal Code, 1860 (IPC), Sections 4(1) and 4(1)(a) of the Mines and Minerals Developments and regulation Act, 1957 and Rules 3, 21 and 22 of the Gujarat Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2017.

It is the case of the first informant that he is working as Mines Supervisor in the Geological Office, Surat. The Geological department received an information that some illegal mining was going on and hence, when the first informant along with his team went for checking, they saw Mahindra Excavator and found that illegal mining has been done at Survey No.496 and thereafter, they took the statement of the driver. Further, they found that 910 tons of sand was excavated from the said land worth of Rs.2,18,400/-. The first informant has filed a complaint against four accused on 17.12.2021 for the offence committed on 30.11.2021 i.e. after delay of 17 days.

Learned advocate for the applicant has submitted that the applicant is not connected with the land bearing Survey No.496, where sand was kept and he has nothing to do with mining. He has submitted that one of the accused has also replied to the department on 06.12.2021. He has submitted that the maximum punishment in the said offence is three years under the provision of IPC. It is further submitted that the applicant has rented land bearing Survey No.495, upon which he was farming sugarcane and the road connected to the land was damaged hence, he asked the accused No.2 to repair the same.

5.1 Learned advocate for the applicant submitted that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. He further submitted that the applicant will keep himself available during the course of investigation, as well as trial also and will not flee from justice. He further submitted that the co-accused Ketanbhai Sumanbhai Patel and Sitaben Chaudhary have been released by the Sessions Court vide order dated 05.02.2022 and 19.02.2022 passed in Criminal Misc. application No.52 of 2022 and 81 of 2022 respectively on anticipatory bail.

5.2 Learned advocate for the applicant, on instructions, submitted 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 submitted 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, submitted that considering the above facts, the applicant may be granted bail.

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.

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.

This Court has considered following aspects;

(a) that the applicant is not connected with the land bearing Survey No.496, where the sand was found;

(b) that the co-accused have been enlarged on bail by the Sessions Court;

(c) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary at this stage;

Looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant.

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.

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.11214031212498 of 2021 registered with Mahuva Police Station, District Surat 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 12.04.2022 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.

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. 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.

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

The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. 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.

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.