IMPORTANT POINT
The main legal point established in the judgment is the exceptional nature of anticipatory bail, the delicate balance between individual liberty and the requirements of a thorough investigation, and the need for a fair and free investigation.

JUDGMENT :

Rule returnable. Learned APP waives service of rule for the respondent State.

1. By way of the present petitions under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11216025230480 registered with Santej Police Station & C.R.No.11216008230490 both registered with Gandhinagar Sector 7 Police Station.

2. Brief facts of the case are as under:-

2.1 It is alleged that the petitioner is a retired collector, and lastly he was serving as collector at Gandhinagar as a Government Servant from 06.04.2018 to 30.09.2019. That sum and substance of the FIR is that loyalty and honesty was lacking in the service of the petitioner; the petitioner has ignored rules and regulations of the government and provisions of law for his Personal interest; he had adopted peak and choose policy; he has harassed the petitioners of the cases, where they have not settled it financially; the petitioner has caused loss of premium amount to the government; committed criminal breach of trust; at the time of his retirement in the last week, he has decided many non-agricultural permission cases and in some cases he has decided after his retirement; and in the entire proceedings serious misconduct and irregularity is surfaced and he has misused his power and authority.

2.2 The petitioner has passed the orders and exercised his powers as a collector in his official capacity as a quasi- judicial/judicial authority and jurisdiction vested in him as a public servant. What is pertinent to note though is that till date those orders are not challenged by the Government to the higher forum. Moreover, the orders passed by the present Petitioner are appealable/revisional in nature as per the provisions of Bombay Land Revenue Code as well as Gujarat Tenancy and Agriculturist Act.

2.3 It is further submitted that the FIR as CR No. 11216008230197 of 2023 is already registered against the present Petitioner on 17.05.2023 before Sector-7 Gandhinagar police station, Dist: Gandhinagar and as per the said FIR the offence with regard to alleged misappropriation and misuse of powers with regard to lands situated at Village: Mulsana, Taluka: Kalol, Dist: Ganhidnagar is already investigated by the Investigating agency.

2.4 That the petitioner herein had preferred anticipatory bail application before Session Court Gandhinagar at Kalol being Criminal Miscellaneous Application Nos. 432 of 2023 & 1625/2023. That said applications came to be rejected vide order dated 10.11.2023 & 8.11.2023. Hence, present petitions.

3. Heard learned Senior Counsel Mr. ND Nanavaty with learned advocate Mr. Maunish Pathak for the petitioner and learned AAG Mr. Mitesh Amin with learned APP Mr. HK Patel for the respondent.

4. Learned Senior Counsel appearing on behalf of the petitioner submits that initially, the FIR came to be lodged for the offences punishable under Sections 409, 217, 218 and 219 of the IPC 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”). Learned Sessions Court would further submit that the incident alleged in the FIRs had taken place between the period 06.04.2018 and 30.09.2019 for which the FIRs came to be lodged on 7.10.2023. Thus, the FIR has been lodged after considerable delay i.e. three years for which no explanation is coming forth. Learned Sessions Court would submit that the property in question was not put to his personal use by the present petitioner, and therefore, the ingredients as mentioned in Section 405 of the Code are not made out against the present petitioner, and therefore, the offence punishable under Section 409 of the Code is also not made out against him.

4.1 Learned Senior Counsel would submit that that the order, which was passed by the present petitioner exercising his powers as a Collector, Gandhinagar was passed by him in the Year- 2019. The said order