Back
2020 Supreme(Guj) 774
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Shweta Hamir Jadeja – Appellant
Versus
State Of Gujarat – Respondent
R/Criminal Misc. Application No.13538 of 2020
Decided on : 26-10-2020
Advocate Appeared:
For the Appellant : MR VIRAT G POPAT
For the Respondent: MR MITESH AMIN
Point of Law: it is clear that the legislature has amended the provisions and enlarged the scope of Section 13. Of course, in the present case, the prosecution has referred to unamended Section 13, however, even if amended Section 13 is made applicable then Section 13 (1) (b) would be attracted in the present case, which provides that if public servant commits a criminal misconduct with an intention to enrich himself illegally during the period of his office, he is said to have committed the offence under Section 13. Now, in the present case, mere mentioning of wrong provision may be treated as a mistake, which can be corrected by the prosecution. The mistake of mentioning of wrong Section is not ipso facto illegal. It is just an irregularity which can be rectified.
Headnote:
Criminal Law - Code of Criminal Procedure,1973 - Sections 439, 437 and 167 - Prevention of Corruption Act - Sections 7, 7A, 8 12 and 13 (A) (D) (1) (2), 13 (2) and 15 - New Amendment Act - Section 9 (4) - Obtained illegal gratification/bribe - She is entitled to be released on bail - No iota of evidence regarding demand of bribe - Allegations made against the applicant in the FIR, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge applicant on regular bail - Bail bond to be executed before learned Lower Court having jurisdiction to try the case - It will be open for the concerned Court to delete -Case of prosecution is to effect while applicant herein was serving as Police Sub Inspector - Police Station City applicant herein obtained illegal gratification/bribe from complainant for not proceeding with proposal under Prevention of Anti-Social Activities Act - It is alleged in month of complainant was asked by present applicant to pay and subsequently, in another incident complainant was asked to pay bribe - It is also alleged that such amount was transferred by one employee of complainant through was received by one co-accused - It is also alleged that co accused is relative of the applicant and on behalf of her, he has received the amount - With such allegations complaint is filed against present applicant
Findings of the Court - Authorities will release the applicant only if she is not required in connection with any other offence for the time being - If breach of any of conditions is committed - Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter - Bail bond to be executed before learned Lower Court having jurisdiction to try the - Rule is made absolute to the aforesaid extent. Registry is directed to serve this order to the concerned authority through email/fax or any other electronic mode - Learned Trial Court shall not be influenced by observations of preliminary nature, qua evidence at this stage, made by Court while enlarging applicant on bail – Judge concerned will be free to issue warrant or take appropriate action in the matter.
Result: Ordered Accordingly
ORDER :
1. The present application is filed under Section 439 of the Code of Criminal Procedure by the applicant for regular bail in connection with an FIR being C.R.No.11191011200066 of 2020 registered with DCB Police Station, Ahmedabad City for the offences under Sections 7, 12 and 13 (A) (D) (1) (2), 13 (2) and 15 of the Prevention of Corruption Act [as amended by the Prevention of Corruption (Amendment) Act, 2018].
2. The case of the prosecution is to the effect that while the applicant herein was serving as Police Sub Inspector, Mahila Police Station (West), Ahmedabad City, the applicant herein obtained illegal gratification/bribe from the complainant for not proceeding with proposal under the Prevention of Anti-Social Activities Act (PASA). It is alleged that, in the month of February 2020, the complainant was asked by the present applicant to pay Rs.20 Lakhs and subsequently, in another incident the complainant was asked to pay bribe of Rs.15 Lakhs. It is also alleged that such amount was transferred by one employee of the complainant through Angadia which was received by one co-accused viz. Devendra Odedara. It is also alleged that coaccused is relative of the applicant and on behalf of her, he has received the amount. With such allegations, complaint is filed against the present applicant.
3. Heard Mr.Virat Popat, learned advocate for the petitioner and Mr.Amin, learned Public Prosecutor for the respondent-State through video conferencing.
3.1 The main contention of the learned advocate for the petitioner is that the petitioner is a lady accused and she is entitled to be released on bail. He submitted that as per the provisions of Section 437 of the Criminal Procedure Code, the woman accused can be released even in cases where the offence is punishable with imprisonment of life, while in the present case, the maximum punishment is of seven years. He has also contended that there is no iota of evidence regarding demand of bribe, which is most important aspect under the provisions of the Prevention of Corruption Act. According to him, in the present case, there is no such material filed by the prosecution with the charge sheet to show that there was a demand of bribe. He has also contended that whatsapp messages exchanged between the parties cannot be treated as proof of demand.
3.2 Learned counsel for the petitioner also submitted that though Section 13 of the Prevention of Corruption Act has been amended recently, the prosecution has relied upon old provision of Section 13 of the Act. He has further contended that the case does not fall under Old Provisions of the Act and, therefore, this fact may also be considered while deciding present application. Learned advocate for the petitioner further submitted that in view of new Amendment Act, Section 9 (4) provides that certain offences are non-cognizable and, therefore, the facts narrated by the prosecution against the present petitioner are non-cognizable offence and in that case even police could not have arrested her.
3.3 Mr.Popat, learned advocate for the petitioner further submitted that the petitioner is a lady and she is in jail since 3.7.2020 and charge sheet has already been filed against her and there is no need of further investigation. He submitted that as one of the accused is absconding, the petitioner cannot be put behind the bar and it is the function of the investigating officer to arrest the accused, who is absconding. He has relied upon following decisions:
(i) B. Satya Narayan Murthi v. District Inspector of Police and Others reported in AIR (2015) SC 3549.
(ii) Order passed by coordinate Bench of this Court dated 19.6.2018 in the case of Dr.Kanaiyalal Sundarji Detroja v. State of Gujarat in Criminal Misc. Application Nos.9865, 9866 and 3486 of 2018.
(iii) Order of coordinate Bench of this Court dated 5.4.2016 passed in the case of Sanjay Raghunathprasad Gupta v. State of Gujarat in Criminal Misc. Application No.4146 of 2016.
3.4 In view of above, he has praye
