TaxTMI 
TaxTMI 
2023 (4) TMI 1302
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....URYA KANT, J. 1. Leave granted. 2. The Appellants in the two Criminal Appeals, the Central Bureau of Investigation & Rupesh Balwantbhai Brambhatt (hereinafter, "complainant") respectively, are aggrieved by the order dated 19th December, 2022 passed by the High Court of Gujarat at Ahmedabad allowing the anticipatory bail application filed by Respondent No. 1 in connection with FIR registered as C.R. No. RC0292022A0011 of 2022 before CBI/ACB/Gandhinagar Police Station, District Gandhinagar for the offence Under Section 7 of the Prevention of Corruption Act, 1988 as amended in 2018. BACKGROUND 3. The complainant is a businessman engaged in the construction business that goes by the name: Safal Construction Pvt. Ltd. In February 2019, Respondent No. 1, an IRS Officer, posted as Additional Commissioner of Income Tax, Ahmedabad, conducted a survey for the financial year 2018-19 Under Section 133A of the Income Tax Act, 1961 against Safal Construction Pvt. Ltd. where under the group disclosed an additional income of Rs. 50 crores. 4. Thereafter, in September 2021, search and seizure action was initiated by the Investigation Wing of Income Tax Department, Ahmedabad against S....
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....ase was transferred to the Central Bureau of Investigation (hereinafter, "CBI") and FIR No. 12/2022 was re-registered as C.R. No. RC0292022A0011 of 2022 Under Section 7 of the Prevention of Corruption Act, 1988. The FIR records that Respondent No. 1 evaded arrest by the ACB team and was still at large at the time of re-registration of the FIR. 9. Thereafter, a notice Under Section 41A, Code of Criminal Procedure (hereinafter, "CrPC") was issued to Respondent No. 1 calling upon him to appear before the CBI but Respondent No. 1 failed to respond. On 17th October, 2022, Respondent No. 1 wrote a letter to the Investigating Officer that he had suffered severe anxiety & depression due to the allegations levelled against him and had, thus, gone to his home state of Rajasthan for medical treatment. He sought four days' time to join the investigation. 10. During investigation Smit Thakkar, owner of Dhara Angadia firm, informed the authorities that the illegal gratification was deposited in the account of one Malav Ajitbhai Mehta. It is also claimed that prior to the deposit of the amount, Malav Mehta informed Smit Thakkar that Rs. 30 lakhs would be deposited in the account and wou....
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....s and tamper the evidence. 13. The Court eventually held that custodial interrogation of Respondent No. 1 was necessary to reach the root of the matter. 14. Aggrieved by the order of the Special Judge, CBI Court, Respondent No. 1 applied for anticipatory bail before the High Court of Gujarat. Meanwhile, on 22nd November, 2022, the Court of Special CBI Judge issued a non-bailable warrant against Respondent No. 1. 15. The High Court, vide impugned order dated 19th December, 2022, granted anticipatory bail to Respondent No. 1. The High Court observed that there is a doubt regarding the acceptance of illegal gratification, as it was deposited in the account of Vardhman in Dhara Angadia firm and there is no evidence with respect to acceptance of the amount by Respondent No. 1. The reasons on the basis of which the High Court proceeded to grant anticipatory bail are recorded in paragraph 12 of its order, which states as follows: 12. This Court has considered following aspects; (i) The FIR is registered on 12.10.2022 for the offence which is alleged to have taken place on 04.10.2022. (ii) Learned APP under instructions of IO is unable to bring on record....
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.... the purpose of investigation to collect the missing link of evidence and to unearth the larger conspiracy. The application was allowed in the following terms: The Accused Mr. Santosh Kumar Karnani is directed to appear and surrender himself to the custody of Investigating Officer, CBI/ACB/Gandhinagar from 10.00 am to 7.00 pm on dated 31/12/2022, 01/01/2023, 02/01/2023 and on 03/01/2023, in connection with RC-0292022A0011 GNR. It is further directed that Accused shall be set free at 7.00 pm on respective dates. Further as per the direction of Honourable Gujarat High Court, upon completion of aforesaid period of remand, the Accused be set free upon expiry of remand period and report be submitted to this Court along with copies of medical examination paper/Certificate. The case diary be handed back to the Investigating Officer. The Accused is hereby directed to give full cooperation to Investigating officer to carry out proper investigation of this case. The Investigating Officer is hereby directed to strictly adhere to the guidelines laid down by the Hon'ble Supreme Court of India in case of D.K. Basu v. State of W.B. reported in AIR 1997 SC 6....
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....ordings and video footage have been examined by the Directorate of Forensic Science, Gujarat certifying their genuineness. The report concludes that there are no signs of alteration in the same; vii. Respondent No. 1 falsely pleaded that he had taken casual leave from the competent authority and misled the investigating agency by sending a reply to the notice issued Under Section 41A, Code of Criminal Procedure through the email ID of Blue Heaven Hotel, Jaipur. Upon investigation, it was found that Respondent No. 1 had never stayed at that hotel; viii. During investigation, reliable evidence has come on record to show that other Income Tax officials were hands in glove with Respondent No. 1, which is also evident from the active role played by some officials in helping Respondent No. 1 to avoid arrest by the ACB on 4th October, 2022. Custodial interrogation is highly necessary to ascertain the deeper plot at play and to examine the involvement of other Income Tax officials; ix. Respondent No. 1 appeared before the CBI after the protection granted by the High Court but did not handover his mobile handsets which are a crucial piece of evidence and is, thus,....
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....Respondent No. 1 and defended the High Court order granting pre-arrest bail with the following submissions: i. The allegations levelled against Respondent No. 1 are false and concocted. Respondent No. 1 never raised any demand for gratification as alleged by the complainant. Respondent No. 1 had no connection with the search and seizure action taken against the complainant's company in September 2021 or with the preparation of the appraisal report. Respondent No. 1 is not the Assessing Officer of the complainant's case and the matter is entrusted to some other officer; ii. There is no evidence of demand or acceptance of bribe which are sine qua non for establishing the offence. In trap cases Under Section 7 of Prevention of Corruption Act, the conversation of demand is to be recorded by the complainant in the presence of independent panchas and the trap laying Officer has to ensure that there is no possibility of any tampering. In the present case, the voice recording of the alleged demand has been done without any police involvement and thus, holds no evidentiary value. The alleged deposit of the amount was made in an Angadia firm which is unknown to Resp....
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....indicates mala fides of the investigation agency; viii. The bona fides of Respondent No. 1 are evident from his conduct post the grant of anticipatory bail. As directed by the High Court, Respondent No. 1 appeared before the CBI on at least four occasions, as and when called. Respondent No. 1 has also voluntarily given his voice samples. Given the fact that Respondent No. 1 is cooperating with the investigation, custodial interrogation is not required. The High Court erred in directing that, despite the grant of anticipatory bail, the investigating agency would be at liberty to apply to the competent Magistrate for police remand. This part of the order was to the disadvantage of Respondent No. 1 but he abided by the same and appeared before the Court when the CBI applied for police remand; ix. Respondent No. 1 has an impeccable service record as is evident from his posting to one of the most sensitive assignments in the department. Such postings are only given to senior officers with clean images. His integrity is beyond doubt and he has an unblemished past record. There is no case of disproportionate assets against Respondent No. 1; x. Section 17A of the....
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....he complainant. ANALYSIS 22. The law on grant of anticipatory bail has been summed-up by this Court in Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694, after due deliberation on the parameters evolved by the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565. This Court held thus: 112. The following factors and parameters can be taken into consideration while dealing with anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the Accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the Accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the Accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affectin....
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....rdise the investigation, more so when the allegations are grave in nature. 25. Keeping these principles in mind, we proceed to evaluate the rival submissions. At the outset, it is to be noted that the High Court fell in a factual error in observing that FIR was registered on 12th October, 2022 for the offence alleged to have taken place on 3rd and 4th October, 2022. The FIR was registered by the ACB against Respondent No. 1 on 4th October, 2022 Under Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act, 1988 and was re-registered by CBI on 12th October, 2022. 26. Further, the primary ground assigned by the High Court to grant anticipatory bail to Respondent No. 1 is that there was doubt as to the acceptance of the bribe amount since records of Dhara Angadia firm had not been produced establishing any link between Respondent No. 1 & the firm. 27. The CBI has produced the case diary which contains the statement made by Smit Thakkar, who handles Dhara Angadia firm. He has clearly stated that Malav Mehta was the owner of Vardhman account and had informed him that 30 lakhs rupees would be deposited in his account on 4th October, 2022, which in turn had to be sent to ....
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....gation. 33. The contention that prior approval of investigation, as mandated Under Section 17A of Prevention of Corruption Act, has not been obtained and thus, the proceedings initiated against Respondent No. 1 stand vitiated, has no legal or factual basis. Section 17A merely contemplates that police officers shall not conduct any enquiry, inquiry or investigation into any offence alleged to have been committed by a public servant where the alleged offence is relatable to any recommendation made or decision taken in discharge of official functions or duties, without the previous approval of the competent authority. The first proviso to the Section states that such approval is not necessary in cases involving arrest of the person on the spot on the charges of accepting undue advantage. 34. As may be seen, the first proviso to Section 17A refers to cases wherein a public servant is charged with acceptance of an undue advantage or attempt thereof. A prior approval or sanction to investigate such an officer in a trap case is likely to defeat the very purpose of trap and the investigation, which is not the underlying intention of the legislature. The investigation against Responde....