Gujarat High Court Upholds Special Judge's Order Remanding Accused To CBI Custody Even After Grant Of Anticipatory Bail

The Gujarat High Court has upheld an order remanding a co-accused in a bribery case against IRS Officer Santosh Karnani, to police remand even after grant of anticipatory bail. Karnani was Additional Income-Tax Commissioner, Ahmedabad.

Malav Ajitbhai Mehta had challenged the order passed by the Special Judge – CBI, City Civil & Sessions Court, Ahmedabad sending him to police remand for a period of two days.

According to the prosecution case, the first informant on 4.10.2022 had sent a sum of Rs.30,00,000/- to the Angadia. It was intercepted by the CBI before it could be handed over to anybody. The allegation against Mehta is that he, on behalf of Karnani, had called upon the owner of the Angadia service and had asked to hand over the amount of Rs. 30,00,000/- deposited by the first informant with the Angadia Pedhi to the person deputed by him for the purpose.

Thereafter, Mehta had approached the High Court seeking Anticipatory Bail which was allowed vide order dated 19.12.2022.

Senior Advocate BB Naik submitted that the petitioner had cooperated with the Investigating Agency (IA) after being granted protection and had remained present before them even after he was granted anticipatory bail by the court. He alleged that the investigating agency wants to obtain a confessional statement from him for which his remand is being sought.

Naik pointed out that the main accused Karnani was also ordered to be enlarged on anticipatory bail by the court. The order was challenged before the Supreme Court which cancelled the anticipatory bail granted to him. Karnani had thereafter surrendered before the investigating agency.

Post Karnani’s surrender on 30.4.2023, Mehta was called upon by the investigating agency to remain present for interrogation. He remained present before the agency on the that date for nine and half hours, the court was told. Thereafter on 2.5.2023, the application for police remand was filed.

Naik further argued that Section 167 of the CrPC requires the petitioner to be in custody for him to be sent to police remand, and since, after the order of anticipatory bail was passed by the High Court, the petitioner was never arrested, he cannot be said to be in custody, and therefore, the lower court ought not to have remanded the petitioner to police custody. He therefore prayed that the lower court's order be quashed and set aside.

Additional Solicitor General Devang Vyas contended that Mehta had not cooperated with the investigation and submitted that during the course of investigation, the agency collected certain material which indicates clear nexus between the petitioner and the offence in question. ASG said Mehta is required to be confronted with the said material for taking the investigation to its logical conclusion.

Verdict

Justice M. R. Mengdey noted that in the order granting anticipatory bail to Mehta, the High Court had observed that the investigating agency could subsequently apply to the competent magistrate for police remand of Mehta and if such an application is made, then Mehta shall remain present before the Magistrate during all hearings and such presence before the Magistrate would be treated as judicial custody for the purpose of entertaining application of the prosecution for police remand.

“Going by this aforesaid observations made by this Court, the Petitioner is required to be considered to be in custody for consideration of an application for police remand, and therefore, the argument canvassed on behalf of the Petitioner should fail,” the court observed.

The court further said that the material produced by the investigating agency prima facie establishes the connection between the present Petitioner and the Angadia Pedhi involved in the matter.

"The material also primafacie indicates the fact that it was the present Petitioner who had called up the owner of the Angadia Pedhi and had asked him to hand over the amount deposited by the first informant to the person deputed by him for the purpose," said the court.

The court observed that the apprehension voiced on behalf of the petitioner that the investigating agency is desirous of obtaining any confessional statement from him appears to be a misconception.

Case Title: MALAV AJITBHAI MEHTA vs. STATE OF GUJARAT R/SPECIAL CRIMINAL APPLICATION NO. 5899 of 2023

Case Citation: 2023 Livelaw (Guj) 89

Appearance:SHRI B.B.NAIK, SENIOR ADVOCATE with MR. BHADRISH S. RAJU, ADVOCATE and MR TATSAT A BHATT(12760) for the Petitioner(s) No. 1 SHAHIL A SARWANI (8432) for the Petitioner(s) No. 1

MR. DEVANG VYAS, ADDITIONAL SOLICITOR GENERAL with MR. KSHITIJ AMIN, STANDING COUNSEL for Respondent(s) No. 2MR. UTKARSH SHARMA, APP for the Respondent(s) No. 1

Click Here To Read/Download Order