Misuse of position for personal gain, acceptance of illegal gratification, tampering with evidence.

ORDER :

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R.NO. 11216008230197 of 2023 registered with Gandhinagar Sector 7 Police Station, Gandhinagar.

2. Learned Senior Advocate appearing on behalf of the applicant submits that initially, the FIR came to be lodged for the offences punishable under Sections 409, 168, 193, 196, 465, 467, 468, 471 and 120(B) of the Indian Penal Code, 1860 (herein after referred to as the “Code”) and Sections 13(1)(a), 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988 (herein after referred to as the “Act”). However, after investigation, the Investigating Agency has filed charge-sheet and the applicant has been charge-sheeted for the offence punishable under Sections 409 and 219 of the Code and Sections 13(1)(a), 13(1)(b) and 13(2) of the Act . The applicant has not been charge-sheeted for any other offences mentioned in the FIR. The applicant has been arrested in connection with the present offence on 11.07.2023 and since then the applicant is in custody.

2.1 Learned Senior Advocate for the applicant has submitted that the incident alleged in the FIR had taken place between the period 06.04.2018 and 30.09.2019 for which the FIR came to be lodged on 17.05.2023. Thus, the FIR has been lodged after considerable delay for which no explanation is coming forth.

2.2 Learned Senior Advocate for the applicant has submitted that the the property in question was not put to his personal use by the present applicant, and therefore, the ingredients as mentioned in Section 405 of the Code are not made out against the present applicant, and therefore, the offence punishable under Section 409 of the Code is also not made out against him.

2.3 Learned Senior advocate for the applicant has submitted that the order, which was passed by the present applicant exercising his powers as a Collector, Gandhinagar was passed by him in the Year-2019. The said order appears to be the basis for the present FIR. The said order, if as per the case of the prosecution, was not tenable in law, the same ought to have been taken in review by the State Authorities, however, till date, the said order has not been take in review and the order passed by the applicant has attained the finality. Thus, the basis for lodging the present FIR appears to be not germane to law. There is no material whatsoever on record indicating about any demand of illegal gratification by the present applicant nor there is any sufficient material indicating about the acceptance of illegal gratification by the present applicant.

2.4 Learned Senior Advocate for the applicant has submitted that so far as the aspect of disproportionate assets of the present applicant are concerned, the same find no reference in the entire charge-sheet. The prosecution seeks to rely upon the statement of witness Rajendra Gahdavi, who in his initial statement does not say about the payment of illegal gratification to the present applicant. However, in subsequent second statement dated 23.07.2023, he states that he had paid sum of Rs.85 lacs to the present applicant. If the said witness had really paid amount of Rs.85 lacs to the present applicant towards illegal gratification, he had no reason not to intimate about the same in his first statement given to the police authorities. Thus, the statement of this witness dated 23.07.2023 appears to have been extorted from him by the police. There is no prima facie case against the present applicant for commission of the offence in question. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions.

3. Learned Additional Advocate General appearing on behalf of the respondent-State has opposed grant of regular bail by submitting that the order, which is subject matter of the present FIR was fraudulent order passed by the present applicant intentionally for some illega