Gujarat High Court
Rashid Zishan S/O Zishan Kahlil vs State Of Gujarat on 28 July, 2025
NEUTRAL CITATION
R/CR.MA/8938/2025 ORDER DATED: 28/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8938 of 2025
(FOR ANTICIPATORY BAIL)
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RASHID ZISHAN S/O ZISHAN KAHLIL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NITISH M NAIR(13998) for the Applicant(s) No. 1
MR BM MANGUKIYA(437) for the Respondent(s) No. 2
MS BELA A PRAJAPATI(1946) for the Respondent(s) No. 2
MR NIRAJ SHARMA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 28/07/2025
ORAL ORDER
1. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the applicant has prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No. 11191037230834/2023 registered with Odhav Police Station, for the alleged offences as mentioned in the FIR.
2. Heard learned advocate, Mr. Nitish Nair for the applicant, learned Additional Public Prosecutor, Mr. Niraj Sharma for the respondent - State of Gujarat and learned advocate, Mr. B.M. Mangukiya for the respondent no.2.
3. Learned advocate for the applicant referred to the allegations and accusation leveled in the FIR and submitted that the so-called incident has occurred Page 1 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined during the period between 01.01.2018 to 28.08.2023, for which, FIR has been lodged on 28.08.2023, wherein the applicant is shown as accused no.2. He submitted that the applicant is not directly or indirect connected with the alleged commission of crime. He submitted that in fact, the complainant had entered into transactions with other co-accused by way of executing deed, copy of which is produced on record, wherein the name of the applicant is not mentioned. He submitted that in fact, as per the case of the prosecution, entire amount had been transferred through RTGS mode and all those amount have been transferred in the account of the co- accused and the applicant has not derived any benefit out of the said transaction and, therefore, the applicant may be enlarged on anticipatory bail.
4. Learned advocate submitted that the prosecuting agency has come with a specific case that the applicant is involved in the business of mines and mineral, however, the applicant is not at all connected with the said business, however for the reasons best known, he is arraigned as accused with oblique motive. He further submitted that considering the aforesaid facts, custodial interrogation at this stage is not necessary and the applicant will keep herself available during the course of investigation, trial also and will not flee from justice. He on instructions Page 2 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined submitted that the applicant is ready and willing to abide by all the conditions including imposition of conditions while releasing the applicant on anticipatory bail. It is, therefore, urged that that considering the above facts, the applicant may be granted anticipatory bail.
5. Learned Additional Public Prosecutor, Mr. Sharma appearing for the respondent - State of Gujarat has opposed the present application with a vehemence and submitted that the applicant is actively involved in commission of crime and his role in the commission of crime is clearly spelt out from the investigation papers collected so far. He submitted that after the registration of the FIR, the concerned Investigating Officer has carried out investigation and on conclusion of the investigation, the chargesheet has been filed against only one accused, wherein the applicant was shown as absconding accused as he was evading his arrest. He submitted that the investigation papers collected so far clearly goes on to show that the applicant is associated with other co- accused. He submitted that in the present offence, the accused no.1 had impersonate himself as Class- I Officer working in the Railway and came in contact with the complainant and he introduced the applicant herein with the complainant and at that relevant point of time, the applicant herein had given assurance to the complainant that if the complainant would invest money in the business, in Page 3 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined that even, he would yield huge returns from the said investment and relying upon the words of the applicant, the complainant had invested huge volume of amount in the account of the co-accused and just to show throw sand in the eyes of the complainant, initially for 15 days, the business had been started and, thereafter, it had been wind up and thereby duped the complainant. He submitted that in fact, time and again the complainant had paid visit UP and met all the accused persons but at that relevant point of time, false assurance were given to repay the said amount but not a single penny was paid by them to the complainant. He submitted that all the accused have acted in connivance with each other and duped the complainant.
6. Learned APP submitted that initially FIR has been lodged under Sections 406 and 420 of the IPC and, thereafter, notice under Section 41A of the CrPC was issued upon the applicant, which was duly served upon him, however, he did not appear before the concerned IO, which clearly goes on to show that there as clear cut non-cooperation on the part of the applicant. He further submitted that subsequently, Section 409 of the IPC was added and one of the co-accused has been arrested and as stated above, chargesheet has been filed, wherein the applicant is shown as absconding accused. He submitted that FIR is lodged in the year 2013 and on number of occasions, notices have been issued Page 4 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined to remain present for interrogation but the applicant is evading his arrest at the hands of the IO and because of his conduct, appropriate steps have been taken and pursuant thereto, warrant under Section 70 of the CrPC has been issued upon him. It is, therefore, submitted that the investigation is still going on and the material collected so far suggests the involvement of the applicant in the commission of crime, therefore, custodial interrogation of the applicant is required. It is, therefore, urged that considering the above facts, discretionary relief may not be granted at this stage the present application may be rejected.
7. Learned advocate, Mr. Mangukiya appearing for the original complainant has adopted the submissions canvassed by learned APP and submitted that as the applicant is involved in commission of crime and his active involvement is found out from the investigation papers, no discretion may be exercised in his favour and the present application may be rejected.
8. Having heard the learned advocates appearing for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the Page 5 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined factors to be borne in mind while considering an application for bail are (i) the nature and gravity of the accusation; (ii) the antecedents of the applicants including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicants to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicants by having him so arrested. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided.
9. It is required to be noted that normal procedure prescribed for curtailing the right to life & liberty, is that the investigating officer can arrest the accused even without warrant. No doubt this Court has extraordinary power to protect an innocent person. However, this power has to be exercised by the Courts with due circumspection.
10. Having heard learned advocates for the parties and having considered the allegations leveled in the FIR, it is found out that an FIR came to be registered for the alleged incident alleging inter alia that the accused persons, in connivance with each other, have hatched conspiracy to dupe the complainant and as a part of said conspiracy, the co-accused had introduced himself as Class-I Page 6 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined Officer of Railway, who introduced the complainant with the applicant, who lured the complainant by giving attractive offers of good turns in the event the complainant would invest amount in their business and relying upon the words of the applicant, the complainant had invested huge amount to the tune of Rs.1,90,00,000/- and after having received the said amount, the business was closed down and the accused fled away and on demanding the amount back, false promises were given but not a single penny was paid to the complainant and thereby all the accused have in connivance with each other have committed alleged offence of cheating.
11. I have considered the investigation papers gathered by the concerned Investigating Officer during the course of investigation and found out that right from the beginning, it was the intention of the applicant to cheat the complainant, therefore, they have lured him by giving attractive offer and the complainant succumbed to the same and invested huge amount and, thereafter, the accused fled away and were not available at the place of business, thereafter, the efforts were being made by him to return back his amount but all went into vein and the accused did not pay single penny, which resulted into registration of the FIR narrating all facts. It is required to be noted that the offence with which the applicant is charged with, Page 7 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined is an economic offence and is against the interest of the society. Thus, looking to the totality of the facts and circumstances, which are brought to the notice of this Court along with all material particulars as well as the mode and manner in which the accused have committed alleged offence. It is also required to be noted that as held in catena of decisions, the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Undoubtedly, economic offences have serious repercussions on the development of the country as a whole. Thus from the documents available on record, prima facie involvement of the applicant in the commission of crime is found out. Therefore considering the facts of the case, I am of the view that the contentions raised by learned advocate for the applicant are not so meritorious, on the basis of which, the applicant is entitled for relief as prayed for.
12. It is also required to be noted that the FIR is of the year 2023 and we are in the year 2025 and till date, the applicant is evading his arrest at the hands of the concerned Investigating Officer. It is not that the concerned Investigating Officer Page 8 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined has not made his efforts to find out the applicant but it is the applicant, who is evading his arrest for one reason or other. Not only that, to secure the presence of the applicant for the purpose of investigation, the concerned Investigating Officer has submitted an application under Section 70 of the CrPC for the purpose of issuance of warrant, wherein the court concerned has passed an order issuing warrant, however despite the said fact, the applicant has not remained present before the concerned IO, which itself speaks volume and the act, conduct and behavior of the applicant.
13. Further as submitted by learned APP, despite issuance of notice under Section 41A of the CrPC, the applicant has not remained present, which resulted into submission of an application under Section 70 of the CrPC, wherein the court concerned has passed an order and warrant under Section 70 of the CrPC has been issued. Therefore, I would like to place reliance upon the decision of the Hon'ble Supreme Court in case of Srikant Upadhyay Vs. State of Bihar, reported in 2014 (0) AIR(SC) 1600, wherein the Hon'ble Supreme Court has dealt with similar issue. In the said decision, the applicant concerned had approached the Hon'ble Supreme Court against the order rejecting an application for anticipatory bail, wherein also, the proceedings were initiated under Section 70 of the CrPC as also under Section 82 of the CrPC and considering the facts of the case, Page 9 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined the Hon'ble Supreme Court dismissed the said SLP. In the said decision, the Hon'ble Supreme Court has observed in Paragraph Nos.8 to 11 as under, "8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under Section 438, Cr. PC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679.
9. When a Court grants anticipatory bail what it actually does is only to make an order that in the event of arrest, the arrestee shall be released on bail, subject to the terms and conditions. Taking note of the fact the said power is to be exercised in exceptional circumstances and that it may cause some hinderance to the normal flow of investigation method when called upon to exercise the power under Section 438, Cr.PC, courts must keep reminded of the position that law aides only the abiding and certainly not its resistant. By saying so, we mean that a person, having subjected to investigation on a serious offence and upon making out a case, is included in a charge sheet or even after filing of a refer report, later, in accordance with law, the Court issues a summons to a person, he is bound to submit himself to Page 10 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined the authority of law. It only means that though he will still be at liberty, rather, in his right, to take recourse to the legal remedies available only in accordance with law, but not in its defiance. We will dilate this discussion with reference to the factual matrix of this case. However, we think that before dealing with the same, a small deviation to have a glance at the scope and application of the provisions under Section 82, Cr.PC will not be inappropriate.
10. There can be little doubt with respect to the position that the sine qua non for initiation of an action under Section 82, Cr. PC is prior issuance of warrant of arrest by the Court concerned. In that regard it is relevant to refer to Section 82 (1), Cr. PC, which reads thus: -
"82. Proclamation for person absconding. (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation."
11. The use of expression 'reason to believe' employed in Section 82 (1) Cr. PC would suggest that the Magistrate concerned must be subjectively satisfied that the person concerned has absconded or has concealed himself. In the context of Section 82, Cr. PC, we will have to understand the importance of the term 'absconded'. Its etymological and ordinary sense is that one who is hiding himself or concealing himself and avoiding arrest. Since the legality of the proceedings under Section 82, Cr. PC is Page 11 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined not under challenge, we need not go into that question. As noticed above, the nub of the contentions is that pending the application for pre-arrest bail, proclamation under Section 82, Cr.P.C., should not have been issued and at any rate, its issuance shall not be a reason for declining to consider such application on merits. Bearing in mind the position of law revealed from the decisions referred to hereinbefore and the positions of law, we will briefly refer to the factual background of the case."
14. In the aforesaid decision, the Hon'ble Supreme Court has observed in Paragraph Nos.17 to 21 as under, "17. Section 70 (2), Cr. PC mandates that every warrant issued under Section 70 (1), Cr. PC shall remain in force until it is cancelled by the Court which issued it, or until it is executed. In this case, as noticed hereinbefore, the bailable warrants and thereafter the non-bailable warrants, were issued against the appellants. They were neither cancelled by the Trial Court nor they were executed. It is not their case that they have successfully challenged them. Sections 19, 20, 21, 174 and 174 A, IPC assume relevance in this context. They, insofar as relevant read thus:
19. "Judge". The word "Judge" denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body or persons, which body of persons is empowered by law to give such a judgment.Page 12 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025
NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined
20. "Court of Justice".The words "Court of Justice" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.
21. "Public servant".The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely:
[Third. Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;]
174. Non-attendance in obedience to an order from public servant.Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
174A. Non-appearance in response to a proclamation under section 82 of Act 2 Page 13 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined of 1974. Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
18. Taking note of the aforesaid facts with respect to the issuance of summons, warrants and subsequently the proclamation, a conjoint reading of Sections 19, 20 and 21, IPC containing the terms "Judge", "Court of Justice"
and "Public Servant" and Sections 174 and 174A, IPC can make them liable even to face further proceedings. Same is the position in case of non-
attendance in obedience to proclamation under Section 82, Cr. PC.
19. Bearing in mind the aforesaid provisions and position, we will refer to certain relevant decisions.
In Savitaben Govindbhai Patel & Ors. v. State of Gujarat, 2004 SCC OnLine Guj 345 the High Court of Gujarat observed thus: -
"9. Filing of an Anticipatory Bail Application by the petitioners-accused through their advocate cannot be said to be an appearance of the petitioners-accused in a competent Court, so far as proceeding initiated under Section 82/83 of the Code is concerned; otherwise each absconding accused would try to create shelter by filing an Anticipatory Bail Page 14 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined Application to avoid obligation to appear before the court and raises the proceeding under Section 83 of the Code claiming that he cannot be termed as an absconder in the eye of law. Physical appearance before the Court is most important, if relevant scheme of Sections 82 and 83, is read closely." (underline supplied)
20. We are in full agreement with the view taken by the Gujarat High Court that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings, as mentioned above are instituted. The meaning of the term "absconded" has been dealt by us hereinbefore. We found that its etymological and original sense is that the accused is hiding himself.
What is required as proof for absconding is the evidence to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the "summons". The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. PC which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the Page 15 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined warrants unenforceable. They also got no case that their application was interfered with by a higher Court. That apart, it is a fact that the appellants themselves on 23.08.2022, moved a bail-cum-surrender application before the Trial Court but withdrew the same fearing arrest. It is also relevant to note that in the case on hand even while contending that they were before a Court, the appellants got no case that in terms of the provisions under Section 438 (1-B), Cr. PC an order for their presence before the Court was ordered either suo motu by the Court or on an application by the public prosecutor. When that be the circumstance, the appellants cannot be allowed to contend that they were not hiding or concealing themselves from arrest or that they were not knowing that they were wanted in a Court of law.
21. To understand and consider another contention of the appellants it is worthy to extract ground No.3 raised by the appellants in SLP which reads thus:
"III. Because the Hon'ble High Court has failed to appreciate that proclamation under section 82 Cr.P.C. was issued on 04.01.2023 by the Ld. Trial Court and thereafter process under section 83 Cr.P.C. have been initiated on 15.03.2023 whereas the application for anticipatory bail by the petitioner before the Hon'ble High Court was filed in November, 2022, however, the same was came for hearing on 04.04.2023. It is, therefore, evident that when the petitioners preferred filing of anticipatory bail before the Hon'ble High Court then none of the petitioner was declared Page 16 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined absconder and process under section 82/83 Cr.P.C. were not initiated against them."
15. It is to be noted that in number of cases, the Hon'ble Supreme Court has held that the power to grant anticipatory bail is an extraordinary power and though it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case and the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases, which may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. It is also required to be noted that in view of aforesaid decision as well as other decisions of the Hon'ble Supreme Court, as and when warrant of arrest is issued, in that event, the applicant is not entitled to invoke the extraordinary power and it is not that this will not deprive the power of the Court to grant pre- arrest bail in extreme, exceptional cases in the interest of justice but here in the present case, as stated above, the applicant is continuously defying orders and keeping himself absconding, therefore, such conduct of the applicant in the light of the aforesaid circumstances, leaves no Page 17 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined hesitation for me to hold he is not entitled to seek the benefit of pre-arrest bail.
16. It is well settled that an application preferred for anticipatory bail is an exceptional remedy to be granted in exception cases. The parameters and considerations governing the grant of anticipatory bail have been explained by the Hon'ble Supreme Court in number of cases. At this stage, I would like to rely upon the law laid down by the Hon'ble Supreme Court in the case of (i) State Rep. by the CBI V/s Anil Sharma reported in 1997 (7) SCC 187,
(ii) Adri Dharan Das V/s State of W.B. reported in 2005 (4) SCC 303 (iii) P. Chidambaram V/s Directorate of Enforcement reported in AIR 2019 SC 4198, wherein the Hon'ble Supreme Court has held held as follows:
"The legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest.
Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. There may be circumstances in which the accused may provide information leading to discovery of Page 18 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined material facts and relevant information. Grant of anticipatory bail may hamper the investigation. It may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In this view, it cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant/applicant under Article 21 of the Constitution of India.
Consequently, power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional Page 19 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined cases where the case alleged is frivolous or groundless. Anticipatory bail is to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy".
Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation".
17. In case of Pratibha Manchanda and another Vs. State of Haryana and another reported in (2023) 8 SCC 181, the Hon'ble Apex Court in Paragraph No.21, observed as under:-
"21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."
18. At this stage, it is required to be noted that as this application has been preferred under the provisions of Section 482 of the Bharatiya Nagarik Page 20 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025 NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined Suraksha Sanhita, 2023 for grant of anticipatory bail, I court would like to refer the decision of the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors.,, reported in (2011) 1 SCC 694, more particularly Paragraph Nos.14 & 112, which read as under :-
"14. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; 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; The possibility of the applicant to flee from justice; The possibility of the accused's likelihood to repeat similar or the other offences. Whereas the accusation have been made only with the object to injuring or humiliating the applicant by arresting him or her. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.Page 21 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025
NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case."
19. Thus while taking into consideration the ratio laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre (supra), I have gone through the contents of the FIR, which is placed on record and also considered the affidavit of the investigating officer filed before the learned Judge concerned opposing the bail application preferred by the applicant. Upon going through the contents of the FIR, it appears that prima facie case is made out against the applicant and material collected so far suggests the involvement of the applicant in the commission of crime. Therefore, the present application deserves to be rejected.
20. For the foregoing reasons, having regard to facts and circumstances, peculiar to the instant case, as have been analyzed hereinabove, there is no ground for interfering with the order of the learned Sessions Court rejecting the application for anticipatory bail. Since his action is nothing short of defying the lawful orders of the Court and attempting to delay the proceedings, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 482 of the BNS, 2023 to grant anticipatory bail. Hence, the present application seeking for anticipatory bail is hereby rejected.
Page 22 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025NEUTRAL CITATION R/CR.MA/8938/2025 ORDER DATED: 28/07/2025 undefined
21. Needless to say that observations and findings made hereinabove are limited to the decision of these pre-arrest bail applications, and shall not influence any other proceedings arise from impugned FIR.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 23 of 23 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:54:09 IST 2025