Vinodkumar Kailashprasad Asthana 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 applicants-accused have prayed for bail inconnectionwiththeFIRbeing

C.R.No.11210023220167 of 2022 registered with Khatodara Police Station, Surat City, District Surat for the offences under Sections 420 and 120B of the Indian Penal Code, 1860 (IPC), Section 3 of the Gujarat Protection of Interest Depositors (in Financial Establishments) Act, 2003 and Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978.

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

4.1 Learned advocate for the applicants, on instructions, submitted 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 submitted that upon filing of such application by the investigating agency, the right of the 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 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 applicants are employees of Company, namely, “Sahara Q Shop Unique Range Limited”;

(b) that this Court has released the accused namely, Balvantsingh Rajendranath Singh on bail vide order dated 08.01.2019, Mina Rajivkumar Desai vide and Jayeshkumar Govindlal Gandhi vide order dated 18.03.2019 passed in Criminal Misc. Application No.2426 of 2019 and 2421 of 2019 respectively;

(c) it is contended by the learned advocate for the applicants that after the aforesaid order dated 08.01.2019 is passed in the case of co-accused, further amount of Rs.1 crore is deposited and the remaining amount will be deposited;

(d) in view of the above, interest of the depositors is already protected as the Company has deposited the alleged amount of misappropriation by the Company;

(e) from the statement of the witness, Nilaben Patel, it is revealed that on the basis of the instructions given by the original accused Nos.1 to 7, the present applicants and even the said witness and other agents have requested the concerned depositors to invest their amount in “Sahara Q Shop Unique Range Limited”. It is not in dispute that the applicants are not the owners/Directors of the aforesaid Company; and

(f) in view of the aforesaid, when almost entire alleged amount of misappropriation is secured, this Court is inclined to consider the case of the applicants.

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 applicants are ordered to be released on bail in the event of their arrest in connection with FIR being C.R.No.11210023220167 of 2022 registered with Khatodara Police Station, Surat City, District Surat on their executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only)(EACH) with one surety of like amount on the following conditions that they :

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 19.04.2022 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 their 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;

(g) it would be open for the Investigating Officer to file an application for remand if he considers it proper and just and the 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 applicants, if he considers it proper and just and the Magistrate would decide if on merits. The applicants 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 applicants, 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 applicants 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.