High Court
Legal Reasoning
1982 BA.209.2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.982 BAIL APPLICATION NO. 209 OF 20241.Suryakant S/o Rukhmaji Kawle.2.Meena W/o Suryakant Kawle. … ApplicantsVersusThe State of Maharashtra.… Respondent...Mr. V. D. Sapkal, Senior Counsel, i/b Mr. Kalyan V. Patil & Mr. Umesk K.Ruparel, Advocates for Applicants. Mrs. Pratibha J. Bharad, APP for Respondent/State....CORAM :SANJAY A. DESHMUKH, J.DATE :09th February, 2024. P.C.:1Heard. 2This is an application, under Section 439 of the Code ofCriminal Procedure, 1973, for grant of regular bail in connection withCrime No.5 of 2024, registered with Bhagynagar Police Station, DistrictNanded, for the offences punishable under Sections 13(1) (d), 13(2) ofthe Prevention of Corruption Act, 1988 and under Section 109 of theIndian Penal Code. 3The applicants are arrested on the allegation that they
Legal Reasoning
2982 BA.209.2024.odtpossess disproportionate assets of 43.37% of their known / legalsource of income i.e. Rs.14,24,146/- plus income. 4It is alleged that applicant No.1 was the chief clerk in theShivaji Secondary and Higher Secondary School at Manik Nagar,Nanded, who retired in the year 2021. 5The details of misappropriation amount with known legalsource of income are given in the report itself. It is alleged thatapplicant No.2 is the wife of applicant No.1, was also involved in thesaid crime. In her name, some properties are purchased and also goldwas found in her possession. Therefore, the report was lodged. 6The learned counsel for applicants submitted thatapplicant No.1 is retired in the year 2021. The applicants have roots inthe society. The practical investigation is over and custodialinterrogation of the applicants is not necessary. The applicants haveno criminal antecedents. The earlier inquiry and prior approval wasdirected to be closed by the office of the DIG, Ante-Corruption, State ofMaharashtra by letter dated 15th / 16th June, 2017. Again theapplication was moved by the complainant and thereafter, theapplicants are arrested. The applicants are falsely implicated in thecrime. The provision of repealed Prevention of Corruption Act,particularly, Section 13(1)(e) is illegally invoked against the applicants. 3982 BA.209.2024.odtIt is lastly prayed to allow the application. 7The learned APP for the State strongly opposed theapplication and pointed out that the applicants are involved in seriouscrime. The complainant after closing of the file, again gave applicationto the DGP, and as per the request of DGP, the DIG, Anti-Corruption,State of Maharashtra, directed further inquiry and approval for openinquiry was granted by letter dated 7th April, 2018. After detail enquiry,the report was registered against the present applicants, when therewas sanction from the office of DIG, Anti-Corruption, State ofMaharashtra by letter dated 19th December, 2023. It is lastly prayed toreject the application. 8Perused the papers of investigation. The practicalinvestigation is over. Applicant No.1 is now retired. The applicantshave roots in the society. The trial will take long period. Section 13(1)(e) is deleted by amendment of 2018 from the Prevention of CorruptionAct, which is invoked against the applicants. 9The learned senior counsel for applicants pointed outSection 17A (1), which reads as under:- “17A. (1) No police officer shall conduct any enquiry orinquiry or investigation into any offence alleged to havebeen committed by a public servant under this Act, 4982 BA.209.2024.odtwhere the alleged offence is relatable to anyrecommendation made or decision taken by such publicservant in discharge of his official functions or duties,without the previous approval—(a) in the case of a person who is or wasemployed, at the time when the offence was alleged tohave been committed, in connection with the affairs ofthe Union, of that Government;(b) in the case of a person who is or wasemployed, at the time when the offence was alleged tohave been committed, in connection with the affairs of aState, of that Government;(c) in the case of any other person, of theauthority competent to remove him from his office, at thetime when the offence was alleged to have beencommitted:Provided that no such approval shall benecessary for cases involving arrest of a person on thespot on the charge of accepting or attempting to acceptany undue advantage for himself or for any otherperson:Provided further that the concerned authority shallconvey its decision under this section within a period ofthree months, which may, for reasons to be recorded inwriting by such authority, be extended by a furtherperiod of one month.”10Section 17A (1) specifies that the police officer is notempowered to conduct the enquiry/inquiry. The learned senior counsel 5982 BA.209.2024.odtsubmitted that applicant No.1 was serving in private institutionregistered under the Societies Registration Act / Public Trust Act andapplicant No.1 being a public servant in discharge of his officialfunction, previous approval must be taken from his office and thatexercise is not done by the investigating officer prior to investigatingthe said crime. 11The learned senior counsel for applicants further pointedout that 1 Kg and 57 gram gold and 620 grams silver was found in thepossession of applicant No.2, who is the wife of applicant No.1. Forthat, he pointed out the judgment of the Rajasthan High Court, Benchat Jaipur in case of C.I.T., Alwar Vs. Satya Narain Patni (D.B.IncomeTax Appeal No.196 of 2010) dated 7th April, 2014, in which in paraNo.12, it is held as under:-“12.It is true that the circular of the CBDT, referred tosupra dt. 11/05/1994 only refers to the jewellery to theextent of 500 gms per married lady, 250 gms perunmarried lady and 100 gms per male member of thefamily, need not be seized and it does not speak about thequestioning of the said jewellery from the person who hasbeen found with possession of the said jewellery. However,the Board, looking to the Indian customs and traditions,has fairly expressed that jewellery to the said extent willnot be seized and once the Board is also of the expressopinion that the said jewellery cannot be seized, it shouldnormally mean that any jewellery, found in possession of a 6982 BA.209.2024.odtmarried lady to the extent of 500 gms, 250 gms perunmarried lady and 100 gms per male member of thefamily will also not be questioned about its source andacquisition. We can take notice of the fact that at the timeof wedding, the daughter/daughter-in-law receives goldornaments jewellery and other goods not only fromparental side but in-laws side as well at the time of 'Vidai'(farewell) or/and at the time when the daughter-in-lawenters the house of her husband. We can also take noticeof the fact that thereafter also, she continues to receivesome small items by various other close friends andrelatives of both the sides as well as on the auspiciousoccasion of birth of a child whether male or female and theCBDT, looking to such customs prevailing throughoutIndia, in one way or the another, came out with thisCircular and we accordingly are of the firm opinion that itshould also mean that to the extent of the aforesaidjewellery, found in possession of the various persons, evensource cannot be questioned. It is certainly 'Stridhan' ofthe woman and normally no question at least to the saidextent can be made. However, if the authorized officers or/and the Assessing Officers, find jewellery beyond the saidweight, then certainly they can question the source ofacquisition of the jewellery and also in appropriate cases, ifno proper explanation has been offered, can treat thejewellery beyond the said limit as unexplained investmentof the person with whom the said jewellery has beenfound.”12The Gujarat High Court in the judgment in case ofCommissioner of Income Tax-I Vs. Ratanlal Vyaparilal Jain (Tax Appeal 7982 BA.209.2024.odtNos.661 and 662 of 2009) dated 19th July, 2010, in paragraph Nos.9and 10 held as under:-“9.As can be seen from the impugned order of theTribunal, the Tribunal has referred to the CBDT circularNo.1916 and observed that in an earlier decision of theTribunal, the Tribunal has accepted the applicability of thecircular and has held that having regard to the circular andsize of the family, the ornaments to the extent specified inthe circular should be accepted as reasonable. TheTribunal, accordingly, found that the jewellery held by theassessee and his family members was well within the limitlaid down under the CBDT circular and accordingly,deleted the whole addition on the ground that the jewelleryheld by each of the family members was below the limitsspecified in the said circular.10.Though it is true that the CBDT circular No.1916dated 11.5.1994 lays down guidelines for seizure ofjewellery and ornaments in the course of search, the sametakes into account the quantity of jewellery which wouldgenerally be held by family members of an assesseebelonging to an ordinary Hindu household. The approachadopted by the Tribunal in following the said circular andgiving benefit to the assessee, even for explaining thesource in respect of the jewellery being held by the familyis in consonance with the general practice in Hindufamilies whereby jewellery is gifted by the relatives andfriends at the time of social functions, viz., marriages,birthdays, marriage anniversary and other festivals. Thesegifts are customary and customs prevailing in a society 8982 BA.209.2024.odtcannot be ignored. Thus although the circular had beenissued for the purpose of non-seizure of jewellery duringthe course of search, the basis for the same recognizescustoms prevailing in Hindu society. In the circumstances,unless the revenue shows anything to the contrary, it cansafely be presumed that the source to the extent of thejewellery stated in the circular stands explained. Thus, theapproach adopted by the Tribunal in considering the extentof jewellery specified under the said circular to be areasonable quantity, cannot be faulted with. In thecircumstances, it is not possible to state that the Tribunalhas committed any legal error so as to give rise to aquestion of law.” 13Thus from the above circular, if the married womanpossess the gold upto 500 grams, unmarried upto 250 grams and 100grams male members, cannot be questioned about his source andacquisition. 14The applicants have roots in the society and they will notflee away from the trial. Considering all these aspects, the applicationdeserves to be allowed on the principle that bail is rule and jail is anexception. The applicants have prima-facie made out the case for bailon the aforesaid principle. The application, therefore, deserves to beallowed on certain conditions. Hence, the following order:- 9982 BA.209.2024.odtO R D E RI.The application is allowed.II.The applicants in connection with Crime No.5 of 2024,registered with Bhagynagar Police Station, District Nanded, forthe offences punishable under Sections 13(1) (d), 13(2) of thePrevention of Corruption Act, 1988 and under Section 109 of theIndian Penal Code, be released on bail on furnishing personalbond of Rs.50,000/- each with surety of the like amount by eachof them on following conditions:- a)The applicants shall not pressurize the prosecutionwitnesses.b)The applicants shall not tamper with the prosecutionevidence, in any manner. [ SANJAY A. DESHMUKH, J. ] nga