Both these applications are filed u/s.438 of the Code of Criminal Procedure by two different co-accused persons seeking anticipatory bail in connection with Sheth Vadala police station C.R.No.10 of 2012 regarding the offences punishable u/ss.120B, 188, 379, 403, 420 and 467 of the IPC and Rule 4 read with Rule 8 of the Gujarat Mineral Relaxation Rules, 2010 and under Rules 3, 5 and 6 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005.
Mr.PM Thakkar, learned senior counsel for Mr.PK Soni, learned advocate for the applicant in connection with Cr.M.A.No.4819 of 2012 and for Mr.SM Chudasama, learned advocate for the applicant in Cr.M.A.No.5961 of 2012, at the outset, submitted that so far as the applicant of Cr.M.A.No.4819 of 2012 - Vrajlal Thakarsinhbhai is concerned, he is the lease-holder and he has paid royalty for the lease to excavate the mines. It is submitted that so far as the applicant of Cr.M.A.No.5961 of 2012 is concerned, the applicant Hitendrasinh is police constable.
2.1 So far as the lease-holder is concerned Mr.Thakkar, learned sr.counsel took me through the contents of the FIR, so also the relevant documents annexed with this application and submitted that as a matter of fact, the applicant is the lease-holder of the lease. It is further submitted that about his lease, one private individual claimed his ownership and filed a civil suit in Civil Court against the Government and its relevant department, and even in that suit, the stay application of that private individual was dismissed and the order was passed in favour of the Government to the effect that the land was Government land and the lease-holder was in fact a lawful lease-holder. My attention was also drawn to a letter dated 5.3.2012 addressed to the lease-holder by Geologist, suggesting the lease-holder to get the land of the lease measured through DILR and till then the work of excavation to be stayed. My attention was also drawn to the letter dated 6.3.2012 whereby the applicant requested the DILR for the measurement and in support of said request, the measurement fee of Rs.1800/- came to be deposited. Mr.Thakkar, learned sr.counsel submitted that before the land could be measured through DILR, the FIR came to be lodged on 17.3.2012 alleging that the work of excavation was going on in adjoining lands. Mr.Thakkar, learned sr.counsel, therefore, submitted that so far as the conduct of the lease-holder is concerned, he immediately applied to the DILR for measurement and only because the DILR delayed the work, the lease-holder is penalised.
2.2 Mr.Thakkar, learned sr.counsel submitted that so far as the allegation against the police constable is concerned, he is alleged to have aided and assisted the lease-holder by passing on certain information on his mobile phone and certain call details are gathered by the police.
2.3 Mr.Thakkar, learned sr.counsel submitted that in the instant matter, Sarlaba with whom the police constable was alleged to have had conversation, came to be released on anticipatory bail on 10.5.2012 vide order passed in Cr.M.A.No.4198 of 2012. It is further submitted that some of the other co-accused persons are released on regular bail in connection with this FIR. Mr.Thakkar, learned sr.counsel further submitted that the trial Court while rejecting the application of anticipatory bail of both the applicants, observed that they are absconding, but in fact as soon as the FIR came to be registered, at the earlier point of time, they approached the trial Court and as soon as the trial Court dismissed the anticipatory bail application, they at the earliest point of time, approached this Court and, therefore, in fact they are not absconding.
Per contra, Mr.Nanavati, learned APP for the respondent - State vehemently opposed these applications and submitted that considering the order passed by the learned Sessions Judge, rejecting the anticipatory bail application of the lease-holder, it has been clearly observed that the lease-holder had transgressed his limits and excavated adjoining Government lands under the pretext of the lease. It is further submitted that despite the fact that there was stay order by Geologist, the work was in progress.
Having considered the submissions advanced on behalf of both the sides, so also considering the fact that there is no dispute that so far as the case of lease-holder is concerned, a valid and lawful lease was in existence at the time of registration of FIR. However, the allegation is that the lease-holder got the adjoining land excavated for the purpose of mining. Prima-facie it appears that till date, the DILR Officer did not measure the land of the lease. It is further prima-facie pertinent to note that in the instant matter, the co-accused Sarlaba came to be released on anticipatory bail by this Court as well as some of the co-accused persons have been granted regular bail. On behalf of the respondent - State it is submitted that both the applicants are absconding. However, at this stage, without undergoing the exercise of elaborate discussion on the question of evidence, but on the question of abscondence, this Court is of the opinion that if both these applications are allowed, subject to imposition of requisite conditions, it would be in the interest of justice of both the sides.
Having heard learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, I am inclined to grant anticipatory bail to the applicants. This Court has also taken into consideration the law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. Reported in [2011]1 SCC 694, wherein the Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Reported in [1980]2 SCC 565.
Learned counsel for the parties do not press for further reasoned order.
In the result, these applications are allowed by directing that in the event of the applicants herein being arrested pursuant to FIR being Sheth Vadala police station C.R.No.10 of 2012, the applicants shall be released on bail on furnishing a bond of Rs.10,000/- (Rupees Ten Thousand only) each with one surety of like amount on following conditions :-
[a] shall cooperate with the investigation and make themselves available for interrogation whenever required.
[b] shall remain present at concerned Police Station on 27.6.2012 between 11:00 am to 2:00 pm:
[c] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any witness so as to dissuade them from disclosing such facts to the Court or to any Police Officer;
[d] shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders;
[e] will not leave India without the permission of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately [f] it would be open to the Investigating Officer to file an application for remand, if he considers it just and proper and the concerned Magistrate would decide it on merits.
[g] despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicants shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining 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 learned 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 anticipatory bail order.
For modification and/or deletion of any of the conditions herein above, the applicant/s will be at liberty to approach the concerned Court and such Court shall decide the application for modification and/or deletion of any of the conditions of this order in accordance with law.
At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
Rule made absolute. Application is disposed of accordingly.
Direct service is permitted.
(J.C.UPADHYAYA, J.)(binoy) Top