Gujarat High Court
Mohammed Najibbhai Abdul Sattar Memon vs State Of Gujarat on 4 January, 2023
Author: Samir J. Dave
Bench: Samir J. Dave
NEUTRAL CITATION
R/CR.MA/16298/2022 ORDER DATED: 04/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16298 of 2022
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MOHAMMED NAJIBBHAI ABDUL SATTAR MEMON
Versus
STATE OF GUJARAT
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Appearance:
MR DAIFRAZ HAVEWALLA(3982) for the Applicant(s) No. 1
MR SALIM M SAIYED(5172) for the Respondent(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 04/01/2023
ORAL ORDER
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in case of his arrest in connection with the F.I.R.No.11210015220114 of 2022 registered with DCB Police Station, District Surat City for the offenses punishable under Sections 420, 467, 468, 471, 506(2) and 114 of the Indian Penal Code.
2. Brief facts of the case is that accused persons of the present case altogether told the complainant to invest in their import export business of cloth to get big profit and Page 1 of 8 Downloaded on : Sun Sep 17 20:27:39 IST 2023 NEUTRAL CITATION R/CR.MA/16298/2022 ORDER DATED: 04/01/2023 undefined thereby made him invest huge amount of money on the basis of aforesaid false talk and afterwards while not giving back the said amount with profit to the complainant, cheated the complainant on the bais of forged business and forged bills of import export to get wrong refund of tax and GST etc.
3. Learned advocate for the applicant submitted that the nature of allegations made in the FIR are such for which custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. On a bare reading of the FIR, ingredients of the alleged offences are not made out. There is no question of criminal breach of trust as alleged by the complainant in the impugned FIR. There is no allegations in the FIR that the applicant wanted to cheat the complainant right from the beginning. In view of the above, the applicant may be granted anticipatory bail by imposing suitable conditions.
Learned advocate for the applicant further stated Page 2 of 8 Downloaded on : Sun Sep 17 20:27:39 IST 2023 NEUTRAL CITATION R/CR.MA/16298/2022 ORDER DATED: 04/01/2023 undefined that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. He further submitted that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open.
4. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail to the applicant accused looking to the nature and gravity of the offence. He submitted that the applicant is involved in the serious offence as alleged in the FIR and therefore, no lenient view would be taken in favour of the applicant by releasing him on anticipatory bail. He submitted that if the applicant is released on anticipatory bail, then he may tamper and hamper the evidences and witnesses respectively. Ultimately, it was submitted by learned APP for the respondent-State to reject present application.
5. I have heard learned advocates appearing for the Page 3 of 8 Downloaded on : Sun Sep 17 20:27:39 IST 2023 NEUTRAL CITATION R/CR.MA/16298/2022 ORDER DATED: 04/01/2023 undefined respective parties and perused the relevant papers produced on record as well as considered the role attributed to the applicant in the FIR.
6. From bare reading of the FIR, it clearly transpires that the applicant accused has played vital role in the offence alleged. In the FIR, it is categorically stated by the complainant that when he was asking for his money back from the accused persons to whom he knows, said accused persons gave name of present applicant accused stating that the money is stuck with present applicant accused. The complainant further stated in the FIR that afterwards, before lodging the present complaint, there was a phone call from unknown mobile number identifying the person himself as the applicant accused Najib and he was threatening him not to demand money as they have no money and other two accused persons on 20/03/2022 also threatened him stating about the said phone call from the applicant accused Najib. The aforesaid fact proves clear involvement of the applicant accused in the offence alleged. Further, from the order rejecting anticipatory bail application of the applicant, it Page 4 of 8 Downloaded on : Sun Sep 17 20:27:39 IST 2023 NEUTRAL CITATION R/CR.MA/16298/2022 ORDER DATED: 04/01/2023 undefined clearly transpires that all the accused persons including the applicant accused are involved in the offence alleged as they have committed alleged offence by opening forged accounts and making forged bills for getting GST benefit wrongly wherein role of the present applicant is disclosed as lead role.
7. In case of XXX v/s Arun Kumar C.K & Anr. Reported in 2022 Live Law (SC) 870 (Criminal Appeal No. 1834/2022) petition for Special Leave to Appeal (Crl.) No.7188/2022), Hon'ble Apex Court has held that:
"Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail. We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the High Court granting anticipatory bail to the accused should be quashed and set aside. In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case Page 5 of 8 Downloaded on : Sun Sep 17 20:27:39 IST 2023 NEUTRAL CITATION R/CR.MA/16298/2022 ORDER DATED: 04/01/2023 undefined for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment."
8. In case of Prahlad Singh Bhati versus N.C.T. Delhi and another reported in 2001 AIR SCW 1263, has observed as under in para 8 of the report :
"8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purpose of granting the bail, the Legislature has used the words 'reasonable grounds for Page 6 of 8 Downloaded on : Sun Sep 17 20:27:39 IST 2023 NEUTRAL CITATION R/CR.MA/16298/2022 ORDER DATED: 04/01/2023 undefined believing" instead of "the evidence" which means the court dealing with grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
9. Therefore, considering the law which has been laid down by the apex court and considering the averments made in the complaint filed by the original complainant and after considering the observations made by the learned sessions judge concerned, this court is of the considered view that custodial interrogation can be one of the grounds to decline anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail and this is not the case where the discretion should be exercised in favour of the applicant for anticipatory bail.
10. For the foregoing reasons and from the facts and circumstances of the case, it appears that the prosecution has clearly established the prima facie case against the present applicant accused and the court below has rightly rejected application of the applicant Page 7 of 8 Downloaded on : Sun Sep 17 20:27:39 IST 2023 NEUTRAL CITATION R/CR.MA/16298/2022 ORDER DATED: 04/01/2023 undefined accused seeking anticipatory bail. This Court, therefore, is not inclined to exercise the powers vested under Section 438 of Code of Criminal Procedure Code for releasing the present applicant accused on anticipatory bail.
11. Before parting with this judgment, it is hereby clarified that the aforesaid observations made in this order have been made for the purpose of considering the present application for anticipatory bail. Therefore, the same shall not come in the way of the trial court for considering the application that may be filed by the applicant for regular bail or at the time of trial and the trial court concerned shall not be influenced by the observations made hereinabove.
12. In view of aforesaid, present application of the applicant seeking anticipatory bail is rejected. Interim relief, if any, stands vacated. Rule is discharged.
(SAMIR J. DAVE,J) ILA Page 8 of 8 Downloaded on : Sun Sep 17 20:27:39 IST 2023