ASSTT. CIT, CC-2 BARODA vs. NATUBHAI M. MAKWANA

ORAL ORDER Learned advocate for the applicant is permitted to delete respondent No.2. [1.0] RULE. Learned APP waives service of notice of Rule on behalf of the respondent – State. [2.0] By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11192020230405 of 2023 dated 05.07.2023 registered with Dholka Town Police Station, Ahmedabad Rural for the offences punishable under Sections 420, 465, 468 and 120(B) of the Indian Penal Code, 1860. [3.0] Learned advocate for the applicant submitted that present applicant is falsely enroped in the offence with ulterior motive and the entire family of the present applicant are enroped. Further, applicant is a government servant who is going to retire after three years and if applicant is put behind the bars then he will loose his job even though he has nothing to do with the offence. It is alleged that original complainant on 07.10.2022 and his uncle allegedly met the applicant who work as a Clerk in Siddharth College, Dholka to secure the government job in the cadre of Class-III for his relative as and when vacancy falls in the government department. Further, on 08.10.2022, complainant’s uncle in order to secure job for his son, claims to have visited the family of the applicant and allegedly paid 5 lakh in cash and between 10.10.2022 and 15.12.2022, complainant has alleged that he visited the applicant’s house alongwith other people to secure a job and family members of the applicant have claimed to secure the job and thus, they paid the amount. Further, by offering forged joining letter of Income Tax Department, accused persons have received Rs.38 lakh in cash and thus, in connection with the said allegations, complaint came to be registered implicating the entire family of the present applicant. Further, nothing is required to be recovered or discovered from the present applicant as the accused persons have not played any active role in the alleged offence and the main allegation is against one Jaswantsinh Chauhan. Further, learned advocate for the applicant, under the instructions from the applicant, has stated that applicant is ready and willing to deposit any amount that this Court may deem fit and submitting thus, she has requested to allow the present application. [4.0] Learned APP appearing for the State has vehemently opposed the present application and stated that present applicant has forged document and entire family of the applicant is involved in such a scam of job seekers and job aspirants and they have received 38 lakh. Nonetheless, the present applicant issued two cheques of Rs.10 lakh each of the account of his wife which came to be dishonored and further, the applicant has forged joining letter of Income Tax Department which was sent to the witnesses and the complainant and then they went to Delhi on 26.12.2022 and have met accused No.6 and under the guise of fraudulent, concocted and forged document joining letter of the Income Tax Department, the applicant and his family members have received the money and therefore, custodial interrogation is required and prima facie involvement of the applicant is revealed. As investigation is at a nascent stage, custodial interrogation is required. Hence, he has requested not to exercise the discretion in favor of the applicant and has requested to dismiss the present application. [5.0] Heard learned advocates appearing for the respective parties and given thoughtful consideration to the arguments canvassed by both sides. It is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. [6.0] Going through the FIR and the investigation papers, it appears as follows: (1) Present applicant is facing serious charge of forging government documents and during the investigation, it revealed that letter of Income Tax Department being forged which is in the name of the complainant; (2) By showing said forged letter to the complainant and other job seekers, complainant and accused went to Delhi and amount was received to secure the job; (3) The allegation leveled against the applicant is that his family members, the applicant being the government servant, had promised to secure the government job in Class-III cadre in various government departments as and when vacancy come and lured the job seekers; (3) Applicant has also received money from the complainant as well as four witnesses viz. (i) Prakash, (ii) Kunal, (iii) Sandip and (iv) Rohit, who have also clearly stated in their statements about the role of the present applicant and that they have also paid the money; (4) Applicant had issued two cheques of Rs.10 lakh each from the account of his wife are also dishonored; (5) Learned APP has stated that present applicant is absconding while learned advocate for applicant has stated that after registration of FIR the applicant approached the trial Court by filing application for anticipatory bail on 29.08.2023 which is decided belatedly on 02.11.2023. The name of applicant is shown in column No.

“19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome.” [7.4] Further, considering the allegation made in the FIR, for the qualitative investigation, presence of applicant is required and custodial interrogation is necessary. Thus, prima facie it appears that accused has played active role and qualitative investigation is necessary in the matter. [7.5] When serious offences are disclosed and involvement of an accused is prima facie established then, the Court would be loath to lean in favour of grant of pre-arrest bail in absence of any other overriding considerations. The alleged offence is in nature of white collar and socio economic offence and this Court is conscious of the safeguards provided under Section 438 and concept of the personal liberty. But herein, this Court is of considered view that, the present offence is committed very smartly and in very planned and methodical manner which is not just an offence against any individual rather the largest societal interest and in such circumstances, the delicate balance is required to be maintained between two rights one against the personal liberty and second is societal interest. Arrest is part of the process of investigation and intended to secure several purposes in which the accused may provide information, during the discovery of material facts and relevant information. In such circumstances, when investigation is at preliminary stage if, anticipatory bail is granted to the applicant, it may hamper the investigation and to collect the material and more information and to find out the involvement of other persons, custodial interrogation of applicant is necessary. [8.0] In the above facts and circumstances and considering the observations on the legal aspect of the matter, as applicant is actively involved in the offence, I have absolutely no doubt that if applicant is equipped with such an order of anticipatory bail before he is interrogated by the Police, it would greatly harm the investigation and would impede the prospects of unearthing the truth. [9.0] Further, the applicant has misused his powers in guise of being government servant for his personal gain and benefit and committed an offence. The present applicant-accused is involved in white collar socio-economic offence which constitute a class apart and needs to be visited with a different approach. The economic offences adversely affect the economic and social fabric of the country. At this stage, reference is required to be made to the decision of Hon’ble Apex Court in the case of State of Gujarat vs. Mohanlal Jitamalji Porwal & Others reported in (1987) 2 SCC 364, wherein it has been observed in paragraph 5 as under in paragraph: “The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest.” In such circumstances also, grant of anticipatory bail at this stage would frustrate the investigation. [10.0] So far as argument to grant benefit of parity is concerned, co-accused are released on regular bail while lady accused i.e. daughter of applicant was released without entering into merits of the case, as she is having a minor baby. Considering the role of the present applicant and law laid down by the Hon’ble Apex [11.0] Having considered nature and seriousness of the charge, prima facie involvement of accused and possibility of tempering with evidences, it does not appear to be just and proper to exercise the discretion in favour of the applicant and accordingly, the application for anticipatory bail is DISMISSED. Rule is hereby discharged. (HASMUKH D. SUTHAR, J.) Ajay