IN THE COURT OF SPECIAL JUDGE (CBI) FOR GREATER BOMBAY
BAIL APPLICATION NO.650 OF 2017
IN
CBI REMAND APPLICATION NO.861 OF 2017
Kamlesh Jethmal Shah, aged 37 yrs.
R/o. Siddhesh Bldg., ‘E’ Wing, 37th floor,
Flat No.374, Balram Street, Grant Road,
Mumbai 400 007.

)
)
)
)..applicants/accused No.2
V/s.
The State (Through CBI/ACB, Mumbai.) )
No. RC BA/ 1/2017/A0027н Mumbai,
)
dated 20/09/2017
)..Respondent/CBI, ACB
Appearance :
Ld.Adv. Mr. Ashok Singh for applicants/accused No.2.
SPP Mr. Fareed for the respondent/CBI, ACB, Mumbai.
CORAM : H.H. THE SPECIAL JUDGE (CBI)
SHRI VIVEK V. KATHARE
DATE : 10/11/2017 (C.R.NO.53)
ORAL ORDER
1.

The
applicant/accused
No.2
Kamlesh
Jethmal
Shah
arrested alongwith the coнaccused on 22/09/2017, by the respondent/
CBI u/s.12 r/w allied sections of Prevention of Corruption Act, 1988
and was remanded to Police Custody till 28/09/2017 and thereafter,
was taken into Judicial Custody. Since then, the applicant/accused is in
Judicial Custody.

One of the coнaccused in the case Prathmesh
Mhasdekar, however was released on bail by this Court on 04/10/2017,
while rejecting the Bail applications of coнaccused including the present
applicant/accused.
2.

It is contended that the applicant/accused has been falsely
implicated in the case and having no criminal antecedents to his
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discredit.

Even he is not arraigned as accused in FIR.

The entire
transaction between the applicant/accused & the original complainant,
was purely a business transaction, wherein the complainant has issued
cheque in favour of the applicant/accused and in return the
applicant/accused would delivered the equal amount of gold.
3.

It is further submitted that during the course of
investigation the respondent/CBI has conducted search at the residence
& office premises of the applicant/accused and have seized various
articles such as Laptop, Hard Disk, Passport & documents etc. and there
remains nothing to be further recovered. Hence, prayed for release on
bail on the conditions as this Court deems fit.
4.

The respondent/CBI resisted the application by filing their
detail Reply. It is contended that there are no new grounds pleaded in
the present bail application nor there is any change in circumstance and
the investigation is in progress.

It is further submitted that the
transcription in respect of the conversation recorded between the
complainant & the accused disclosed the prime facie involvement of the
applicant/accused in a serious offence by way of aiding & abetting a
public servant in the commission of offence.

Hence, prayed for
rejection of the Bail Application.
5.

Having heard the Ld. Counsels for both the parties. It is
seen that earlier two consecutive bail applications filed by the
applicant/accused came to be rejected by this Court, mainly on the
ground that the offences charged against the accused is serious one and
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the investigation of the case is in progress and there is likelihood of
tampering with the prosecution evidence in the event of his release on
bail.
6.

The Ld. SPP during the course of arguments has however
conceded that the investigation in the case is almost over & the
Investigating Officer is likely to file the chargeнsheet in the case within
the stipulated time. It is further the matter of record that during the
custody of
applicant/accused the Investigating Officer has sought
permission from the Court for further interrogation with the
applicant/accused, in consequence of certain new facts brought on
record and thereupon
recorded the further statements of the
applicant/accused.
7.

It is equally a matter of record that so far as the present
applicant/accused & the recovery of any incriminating article is
concerned, admittedly, the Investigating Officer has conducted search at
the residence & office premises of the applicant/accused and seized
various articles & documents like the storage devices, computers,
Laptop, mobile phone of the applicant/accused and the same have been
sent to CFSL, Pune for imaging and analysis. Thus apparently, it is seen
that everything has been recovered which would be helpful to the
prosecution for the purpose of investigation and consequent to
remanding the present applicant/accused to Judicial Custody, there is
no further recovery by the Investigating Officer.
8.

It is submitted by the Ld. Counsel for the applicant/accused
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that the applicant/accused has several immovable properties within the
vicinity of this Court over which this Court exercises jurisdiction and
further he has a family & fixed place of abode and further the fact that
all the bank accounts of the applicant/accused have been seized, which
is substantial guarantee that the applicant/accused will not abscond in
the event of his release on bail.
9.

It is further seen that there are no criminal antecedents to
the discredit of the applicant/accused.

The
applicant/accused has
further annexed with the application the copy of marriage card of a
member of his family and praying for his presence thereof. It is equally
seen that accused has coнoperated with the Investigating Officer in as
much as there are nothing on record to substantiate that the
applicant/accused had intentionally withheld any material fact from
being disclosed to the investigating agency or in any way not coн
operating with the same. In view of the same, I am of the opinion that
no fruitful purpose would be served by way of further detaining the
applicant/accused behind the bars. However, at the same time, it is
seen that the applicant/accused was an instrumental and acting at the
behest of main accused No.1 Jaipal Swami and the role of present
applicant/accused is that of aiding & abetting the perpetrator of crime
i.e. accused No.1 Jaipal Swami.
10.

In the present case, although the Investigating Agency has
alleged that if the applicant/accused is released on bail, he is likely to
tamper with the evidence. This apprehension is totally misplaced, for
the reason that having regard to the nature of allegations in the
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complaint the crucial evidence like the recovery of articles & documents
at the instance of present applicant/accused has been entirely effected.
Therefore, in the case, the applicant/accused if released on bail and
any attempt to bring any pressure on the complainant or any witnesses
has been reported to the Court by the Investigating Agency then, that
will be a good case for cancellation of bail, but merely detaining the
applicant/accused on such apprehension is not the fruitful attempt. As
admittedly, the statement of all the witnesses have been recorded by the
Investigating Officer. Therefore, there is no likelihood of his tampering
with the prosecution evidence, if released on bail.
11.

Further, the apprehension of the prosecution that the
applicant/accused is an influential person and there is likelihood of the
tampering with the prosecution evidence or that he would abscond.
The position, the status and the influence of the accused can no doubt
be a ground of denial of bail in a case, where the apprehension
expressed by the Investigating Agency is genuine and where there are
sufficient prima facie reasons to believe that he would influence the
witnesses or tamper the evidence to deny to bail to him, but, at the
same time, such a status, position, can also be a valid consideration to
show that the accused has roots in the society and is therefore, not
going to run away from the process of law.

As stated above, the
statement of the witnesses have been recorded by the Investigating
Officer and the recovery of material documents and articles have been
effected and therefore, he will not be able to influence the investigation,
which is almost completed. Most of the evidence against him is in the
nature of recoveries & the documentary evidence and the same has
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been completed. Therefore, there are no chances of its tampering. As
further, noted supra, if any attempt on the part of applicant/accused in
tampering the evidence of prosecution or influencing the witnesses etc.
have been noted by the Investigating Machinery, then the same can be
taken care by imposing the suitable conditions on the applicant/accused
while granting the bail. Further, nothing precludes the Investigating
Agency to move an application for cancellation of bail of the
applicant/accused in case it has slightest prima facie evidence to show
that he is influencing or trying to influence the investigation or the
witness.
12.

In view of the above, the application deserves to be
allowed, in terms of order below :н
ORDER
1. Bail
Application
No.650/2017
in
CBI
Remand
Application
No.861/2017, is hereby allowed.
2. The applicant/accused Kamlesh Jethmal Shah, arrested in Case No.
RC BA1/2017/A00027нMumbai, dated 20/09/2017, at the instance
of CBI, ACB, Mumbai, be released on bail on his executing P. R.
Bond of Rupees One Lakh only with one or two solvent sureties in
the like amount, on the following conditions :
a. The applicant/accused shall mark his attendance with the
Investigating Officer as & when required under written
intimation by the Investigating Officer, till further orders.
b. The applicant/accused shall furnish his permanent residential
address alongwith documentary proof of his address & cell
number of himself and his two close relatives and change in
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address, if any.
c.

The applicant/accused shall not leave the territory of India
without
prior permission of this Court and surrender his
Passport, if any, to the Registrar Sessions, as condition
precedent for his release on bail.
d. The applicant/accused shall not directly or indirectly make any
inducement, threat or any promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing
such fact to the Court or to any Police Officer or tamper with
the evidence.
e. The applicant/accused shall not indulge into any criminal
activities during the bail.
3. In the event of breach of any of the conditions as above, the
prosecution is at liberty to move the Court for cancellation of bail.
4. Application is hereby disposed off accordingly.
(Pronounced in open Court)
Mumbai:
Date: 10/11/2017
(VIVEK V. KATHARE)
Special Judge (CBI)
Court Room No.53, Gr. Bombay.

Dictated on
: 10/11/2017.
Transcribed on : 10/11/2017.
Signed on
:
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УCertified to be true and correct copy of the original signed orderФ.
13/11/2017
at about 4.00 p.m.

(Mrs. Vidya Abhijit Mande)
Stenographer (H.G.)
Court Room No.53
Name of the Hon’ble Judge
: Shri. Vivek V. Kathare
(Court Room No.53)
Date of pronouncement of Judgment/Order
: 10/11/2017.

Judgment/Order signed by Hon’ble Judge on : 10/11/2017.
Judgment/Order uploaded on
: 13/11/2017.

at about 4.00 p.m.

….