Vishalbhai Ramjibhai Baraiya vs State Of Gujarat

A.S. Supehia, J

[1] Heard the learned advocates for the respective parties.

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

[3] 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.11214042220217 of 2022 registered with Olpad Police Station, District Surat Rural for the offences under Sections 406, 409 and 420 of the Indian Penal Code, 1860.

[4] The brief facts of the case are as under:-

[4.1] The fact are likewise, that accused is a government servant and working as Talati cum Mantri at Village Masma, Taluka Olpad, District Surat. It is alleged in the FIR that fraud was committed by the accused while performing his duty. It is alleged that the accused had collected various taxes (i.e. house tax, Land revenue, Education )and after collecting the amount from date 25/02/2020 to 10/03/2022 had not kept the register updated and did not submit the collected amount before the concerned office authorities or mentioned or noted in the Panchayat Record. It is alleged in the FIR that the present applicant has misappropriated the amount mentioned in the FIR.

[4.2] It is also alleged that few of the receipt books that were provided by the concerned office to the present applicant were not recovered or found and the departmental inquiry was made after an application made by few people residing in the village.

[5] Learned advocate for the applicant submits 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 trial also and will not flee from justice. He further submits that the applicant has already deposited an amount of Rs.18,83,950/- before the trial court. Thus, he has submitted that the applicant may be released on bail.

[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 bail.

[7] 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.

[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 bail to the applicant.

[9] This Court has considered following aspects;

(a) Pursuant to the order dated 08.04.2022, the applicant has already deposited an amount of Rs.18,83,950/- before the trial court; to that effect, he has produced a receipt before this Court;

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

[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.11214042220217 of 2022 registered with Olpad Police Station, District Surat Rural 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 29.04.2022 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.

[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 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.

[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. Direct service is permitted.