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Synopsis

The Supreme Court has said that anticipatory bail can be granted where custodial interrogation is not essential, particularly in cases where the allegations hinge on official records and the presence of the accused can be secured without pretrial detention.

A bench of Justices Vikram Nath and Prasanna B Varale allowed a plea by former Gujarat cadre IAS officer Pradip N Sharma for anticipatory bail but dismissed his separate petition for quashing the FIR lodged in Rajkot (Rural) on May 12, 2011, seeking to set aside an order by the Deputy Collector (Morbi) to cancel the allotment of over 65 acres of land for cultivation to individuals who were actually residing abroad. It was alleged that the appellant, acting against the interests of the government and with a view to unduly favoring the allottees, had passed the order with malicious intent and thereby committed offences under Sections 409, 219, and 114 of the IPC.

The appellant, through senior advocate Devadatt Kamat, contended that the alleged acts of omission or commission were carried out in the discharge of his duties in quasi-judicial proceedings and did not amount to criminal misconduct or breach of trust as contemplated under the invoked penal provisions. He sought quashing of the FIR on the grounds that the allegations were baseless, did not disclose any cognizable offence, and that the complaint was malicious, having been filed solely because the appellant’s brother (retired DGP Kuldeep N Sharma, who reportedly exposed the Sohrabuddin Sheikh encounter case and subsequently joined Congress) was at odds with the political leaders of the area.

The Gujarat High Court, on December 12, 2018, dismissed his plea for quashing the FIR. He also sought anticipatory bail, primarily arguing that the registration of multiple cases against him was a result of malafide intent and an abuse of the legal process by state authorities. It was contended that many of the alleged incidents took place before 2009, and despite securing bail in some cases and obtaining stays on investigation in others, fresh complaints were being lodged against him each time he was released on bail. He argued that this indicated a pattern of targeted harassment. The high court, on February 28, 2019, declined to grant him anticipatory bail.

His counsel contended before the apex court that the appellant, a retired IAS officer, had passed the impugned order in his official capacity as the then District Collector, in due exercise of his quasi-judicial functions. The FIR, he argued, was frivolous and motivated, having been lodged after an unexplained delay of four years. The appellant was neither entrusted with the property in question nor had dominion over it, and his decision was in accordance with the powers vested in him under the law.

He also emphasised that passing an erroneous order, if at all, does not constitute a criminal offence, as otherwise, every public officer would be at risk of prosecution for performing official functions.

The counsel submitted that the appellant had an unblemished record of over 30 years in the civil services and was instrumental in the post-earthquake rehabilitation of Bhuj-Kutch. However, after 2010, multiple FIRs were registered against him, allegedly as a consequence of administrative decisions that did not align with the interests of the state government.

Solicitor General Tushar Mehta, appearing for the state government, submitted that the appellant had misused his official position. He stated that the order in question was passed on March 27, 2008, even though the appellant had already been transferred to Bhavnagar on March 24, 2008, raising concerns regarding its legitimacy.

He further argued that the appellant had multiple antecedents, with at least ten FIRs registered against him, including one in CID Crime, Rajkot Zone, concerning the alleged illegal allotment of 150 acres of government land. The state contended that, given the nature of the allegations and the appellant’s involvement in multiple similar cases, custodial interrogation was necessary and that the prayer for quashing the FIR or for anticipatory bail should not be entertained.

The court, on its part, stated that the scope of allowing a prayer for quashing is limited and is to be exercised only in exceptional cases where it is manifestly clear that no offence is made out.

It noted that in the present case, the FIR and the materials relied upon by the prosecution prima facie disclosed the commission of cognizable offences, warranting a full-fledged investigation. Moreover, the allegations against the appellant could not be adjudicated merely based on the pleadings and required scrutiny of official records and procedural compliance.

"At the stage of investigation, Courts should refrain from preemptively quashing criminal proceedings unless there is an evident abuse of process, the bench said. Since the appellant's contentions relate to factual disputes that need verification through proper investigatory mechanisms, it would be inappropriate for this court to exercise its inherent powers to quash the proceedings at this stage," the bench opined.

The court, however, granted him anticipatory bail, noting that the offences alleged pertained to the exercise of administrative discretion in passing an order rather than direct physical involvement in any overt criminal act requiring custodial interrogation.

It also noted that the prosecution had not demonstrated any necessity for the custodial interrogation of the appellant beyond scrutiny of official records, which could be done without placing him in detention.

Additionally, the appellant had expressed his willingness to cooperate with the investigation, and no material had been placed before the court to suggest that he had evaded or obstructed the investigation in any manner, the court observed.

The bench said that the grant of anticipatory bail was justified, also considering the fact that the FIR in question was part of a series of similar allegations against the appellant. It further noted the absence of any concrete material indicating a likelihood of tampering with evidence or influencing witnesses.

Case Title: Pradip N Sharma Vs State of Gujarat & Anr