Gujarat High Court
Mukesh Ghoghabhai Toliya vs State Of Gujarat on 7 July, 2025
NEUTRAL CITATION
R/CR.MA/9849/2025 ORDER DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY
BAIL) NO. 9849 of 2025
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MUKESH GHOGHABHAI TOLIYA
Versus
STATE OF GUJARAT
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Appearance:
MR. LOVE I PATEL(17486) for the Applicant(s) No. 1
MR. MANAN S DOSHI(9795) for the Applicant(s) No. 1
MR. HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 07/07/2025
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. 11208053250328 of 2025 dated 06.04.2025 registered with Rajkot Taluka Police Station for the alleged offences as mentioned in the FIR.
2. Learned advocate for the applicant submits that as per the case of prosecution a raid had been made by the members of police party by sending two persons as dacoy in the premises of accused no.1 and they have found that the said lady i.e. accused no.1 namely Sarojben had indulged into illegal activities to identify Page 1 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined status of fetus by performing the sonography tests, and therefore, an FIR has been registered. Pursuance to registration of the FIR, investigation commenced and ultimately at the end of the day, on the basis of the statement made by the co-accused, present applicant has been arraigned and as accused, therefore, the applicant is seriously apprehending his arrest at the hands of investigation officer concerned, therefore, he has filed the present application.
3. He submits that, in fact, said co-accused Sarojben is a nurse by profession and she was in contact with the present applicant and due to some business work, and there are some monetary transactions took place between the present applicant and the said co-accused and due to which the present applicant is sought to be arraigned as an accused. He submits that PCPNDT Act is a special Act, and therefore, for the purpose of invoking provisions of PCPNDT Act, certain procedures are required to be followed by the authorities concerned. He submits that complainant himself is not authorized by the competent authority to register the FIR, that particular fact is also not narrated by the complainant at the time of registration of the FIR, and therefore, complaint itself is incompetent. He further submits that as per the express bar engrafted in the Act itself, more particularly, in Section-28 of PCPNDT Act, even if though at the end of the day investigating officer concerned would submit chargesheet before competent court, in that event, Hon'ble court cannot take cognizance upon the said Page 2 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined material because there was specific bar under section-28 of the Act and only on the basis of complaint made by the appropriate authority, court can take cognizance upon the facts of the matter and admittedly here in this case, entire investigation is based upon the FIR registered by the police officer, and therefore, there was a statutory bar and applicant is entitled for anticipatory bail.
4. He has placed reliance upon the decision of the Hon'ble Apex Court in the case of Ravinder Kumar Vs. State of Haryana in the Criminal Appeal No.3747 of 2024 wherein the Hon'ble Apex Court has quashed and set aside the proceedings instituted against the accused based upon the FIR putting reliance upon the said section-28(a) of PCPNDT Act. He further submits that by way of issuance of notification, Government of Gujarat has authorized the District Collector, Rajkot, as a District Appropriate Authority, and therefore, before initiation of proceedings, permission of that appropriate authority is required to be obtained. Here in this case, prosecution has not obtained the permission of the appropriate authority, and therefore, also the applicant is entitled to get benefit of anticipatory bail. He further submits that the applicant is ready and agreeable to extend all kind of co-operation to the investigating officer. Considering the above-stated totality of the facts of the matter, this is a fit case wherein Hon'ble court may have to grant discretionary power of anticipatory bail in favour of the applicant by imposing suitable terms and conditions.
5. Learned APP Mr. Soni has objected the present Page 3 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined application with a vehemence and submitted that initially FIR was filed against one lady who had indulged herself into the illegal activities to identify the status of fetus. The prosecuting agency has received a secret information that the co-accused Sarojben used to carry out reports of the fetus by adopting illegal ways through sonography machine. She is a nurse by profession and could not be authorized by any competent authority to carry out the said mode of operations with the help of sonography machines. She is not possessing any qualifying certificate and/or licence to conduct the sonography test even she is not entitled to purchase the sonography machine. Learned APP Mr. Soni has put reliance upon the provisions of the law and submits that there are specific mandatory requirement required to be fulfilled for the purpose of carrying out the activities through sonography machine. In the clinic, certain notices are required to be affixed at the prominent place in a bold letters and certain other guidelines are also strictly required to be adhered to. Admittedly, the lady who was performing the said operations could not have got any authorized permissions (licence) from the competent authority, and therefore, it can definitely be said that by way of illegal means, all those illegal activities have been carried out by that lady. Therefore, decoy was sent and involvement of the said accused in commission of crime is clearly found out, and therefore, immediately FIR was registered. Before, registration of FIR, permission from the competent authority has already Page 4 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined been obtained by the authority concerned. Copy of the said letter is also placed on record.
6. He further submits that in fact the said lady was in constant touch with the present applicant and it is a specific case of the prosecution that with the help of present applicant, those activities had been carried out by both the parties and after performing the said act, the co-accused used to get payment from the present applicant and certain monetary transactions took place between the co-accused and present applicant and document to that effect has already been collected by the investigating officer during the course of the investigation. Not only that they were in constant touch with each other. During the course of investigation, statement of number of witnesses have been recorded and if Hon'ble court would go through the contents of those statements, in that event, involvement of the present applicant in commission of crime is clearly spelt out.
7. He further submits that in fact judgment upon which reliance has been placed by the learned advocate of the applicant in a case of Ravinder Kumar (Supra) is altogether different and it is not applicable to the facts of the present case. In the said case, based upon the FIR, investigation commenced and ultimately at the end of the day investigating officer concerned has submitted charge sheet against the accused person before the competent court and court concerned has taken the cognizance upon the police papers. There is specific bar Page 5 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined under Section-28(a) of PCPNDT Act, therefore, charge sheet could not have been submitted before the competent court, but based upon the FIR, investigation can be carried out and whatever evidence/material is placed by the investigation officer could be said to have been utilized and/or used by the appropriate authority at the time of taking necessary legal actions. Investigation is at the nascent stage wherein involvement of the present applicant is found out. He further submits that so far as lady accused is concerned, earlier point of time, she was also arrested based upon the same sets of allegations wherein she was released on bail. Therefore, with the help of the present applicant, the co-accused had been carried out said activities since long. He further submits that in fact present applicant is also not authorized by any competent authority to perform the said mode of operations. The present applicant is holding the degree of BHMS. As per the government norms, only radiologists and gynecologists have got authorization to carry out modes of operations upon the said machines. Admittedly, present applicant is not holding the said degree and his involvement in commission of crime is clearly spelt out.
8. Learned APP Mr. Soni further submits that there is no specific bar that investigation cannot be carried out on the basis of registration of the FIR. Hon'ble court cannot take cognizance upon the chargesheet paper, but whatever documents and material collected by the investigating officer, can always strengthened the case of Page 6 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined the prosecution, and based upon the said material, if any complaint would be filed by the authorized person in that event reliance can definitely be placed upon those set of materials. He further submits that therefore the said arguments can be construed/treated as premature as yet the said stage has not come. Therefore, this Hon'ble court may not have to exercise discretionary power in favour of the applicant at this juncture.
9. I have heard and considered the arguments canvassed by the learned advocates for the parties and perused the material available on record. It is the specific case of the prosecution that on the basis of secret information received by the members of the police party, a decoy trap has been arranged and one lady constable had been sent to the premises of the accused no.1 as a decoy. Then, she had informed to the members of the raiding party that certain basic and essential formalities to identify the fetus had been carried out, and therefore, members of the raiding party had entered into the premises and raid had been carried out, and then after, main accused and lady accused have been arrested. During the course of interrogation, name as well as role of the present applicant has come on surface. The said lady accused had directly in contact with the present applicant. On number of occasions, the present applicant had made payment to the main accused through Googlepay, and they were in constant touch, and the said fact is also fortified from the call data record received by the member of the investigating officer. It is an admitted Page 7 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined position of fact that applicant as well as the lady both are not legally entitled to perform a test through sonography machine. Therefore, act, action and conduct on the part of main accused as well as the present applicant would squarely fall under the provisions of PCPNDT Act. The applicant herein is a BHMS degree holder, and therefore, legally he is not permitted to perform mode of operations upon the sonography machine. Even, without obtaining necessary permission from the competent Government authority, one cannot purchase sonography machine, and there was prohibition in the law itself. Further, a licence holder can detect the gender of the fetus, but he cannot disclose the same, and if that activity is to be carried out, in that event, it would certainly attract the penal provisions, and the said act, action and conduct would against the statutory provisions. Admittedly, the lady who was caught red-handed by the members of the raiding party is actively involved in the commission of crime, and she was in constant touch with the present applicant. During the course of the interrogation, her statement was recorded and the documents collected by the investigating officer clearly go onto show that involvement of the present applicant in commission of crime is clearly spelt out.
10. The learned advocate for the applicant has also tried to bring to the notice of this Hon'ble court that the complainant is not the competent person to register the FIR. The learned APP who represents the State has produced the copy of letter issued by the Appropriate Page 8 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined Authority, PNDT Act - 1994 and Medical Officer of Health, Rajkot Mahanagarpalika, authorized the complainant to initiate appropriate criminal proceedings under the provisions of PCPNDT Act against the accused.
11. The learned advocate who represent the applicant has try to bring to the notice of this Hon'ble court about the statutory provision, more particularly, Section-28(a) of PCPNDT Act, and submitted that even investigating authority concerned be directed to carry out the investigation, and at the end of the day if chargesheet would be submitted, in that event, competent court has not got jurisdiction to take cognizance upon the fact of the compilation of chargesheet papers. Therefore, considering the same, the applicant may be enlarged on anticipatory bail by imposing suitable terms and conditions.
12. Before dwelling into the issue raised by the learned advocate, I would like to rely and reproduce the provision of law of the PCPNDT Act, more particularly, Section 28(a) which is reproduced hereunder:
28. Cognizance of offences:-
(1) No court shall take cognizance of an offence under this Act except on a complaint made by --
(a) the Appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or
(b) a person who has given notice of not less than fifteen days in the manner prescribed, to the Page 9 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court.
By bare perusal of the above-stated provision of law clearly goes onto show that, at the end of the day, if the investigating officer concerned would submit chargesheet before the competent court, in that event, court cannot take cognizance upon the said fact, therefore, there is statutory bar in taking cognizance upon the fact of the documents collected by the investigating officer. The activities carried out by the accused no.1 cannot be unravelled without sending the decoy trap for the purpose of bringing certain illegal activities carried out by the accused person, sometimes appropriate authority had to take innovative steps, and therefore, after taking the police officer in consultation, a decoy trap has been arranged, and therefore, the complainant was well aware about the said fact that certain actions have been initiated at the instance of the police officer, and therefore, FIR has been registered. By registering the FIR against the guilty person would itself not absolve the criminal liability of the accused on the basis of certain restricted provision mentioned in the statute. As it is a settled proposition of law, on the strength of the registration of the FIR, criminal machinery set to be put into motion. The FIR itself is not the encyclopedia of events. During the course of the investigation, if certain concrete material is to be found, Page 10 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined in that event, reliance can also be placed upon those set of evidences and materials. Prima-facie, it seems that this is a case wherein with the help of police officer, certain operations are required to be carried out by the members of the appropriate authority, and on the strength of the registration of FIR, investigation had been carried out. It is also well within the knowledge of one and all that on the strength of the investigation carried out by the investigation officer if any incriminating material is to be found out which would connect the accused with the commission of crime, in that event, then material certainly be used by the appropriate authority to book the guilty by putting reliance upon it by way of filing appropriate proceedings before the competent court. Here in this case on hand, pursuance to the registration of FIR, investigation commenced and as yet investigating officer has not filed the chargesheet before the competent court. Therefore, the arguments canvassed by the learned advocate with that regard cannot be taken into consideration at this juncture, and it can be termed as premature arguments. Further, it is also found out from the record that the present applicant is holding the degree of BHMS and as per the government norms, only radiologists and gynecologists have got authorization to carry out modes of operations upon the sonography machines, and it is an admitted fact that the present applicant is not holding the said degree, and therefore, his involvement in commission of crime is clearly spelt out. Therefore, I am of the considered Page 11 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined opinion that whatever documents and evidences have been collected by the investigating officer so far, if prima-facie connect the applicant with the commission of crime, in that event, reliance can certainly be placed upon those set of materials and application preferred by the applicant cannot be entertained at this juncture.
13. 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 Suraksha Sanhita, 2023 for grant of anticipatory bail, I 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 Page 12 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined 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. 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."
14. The Hon'ble Supreme Court in the case of Sumitha Pradeep Vs. Arun Kumar C.K. & Anr., reported in 2022 SCC OnLine SC 1529 held that merely because custodial interrogation was not required by itself could not be a ground to grant anticipatory bail. The first and the foremost thing the Court hearing the anticipatory bail application is to consider is the prima facie case against the accused. The relevant extract of the judgment is reproduced hereinbelow:-
"It may be true, as pointed out by learned Page 13 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined counsel appearing for Respondent No.1, that charge-sheet has already been filed. It will be unfair to presume on our part that the Investigating Officer does not require Respondent No.1 for custodial interrogation for the purpose of further investigation. 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 for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory Page 14 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined 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. Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."
15. Thus while taking into consideration the ratio laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre (supra) as also ratio laid down in other decisions as stated above, 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 applicants. Upon going through the contents of the FIR, it appears that prima facie case is made out against the applicants and Page 15 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025 NEUTRAL CITATION R/CR.MA/9849/2025 ORDER DATED: 07/07/2025 undefined material collected so far suggests the involvement of the applicants in the commission of crime.
16. It is required to be noted at this stage that the Hon'ble Supreme Court in catena of judicial pronouncements have observed that a court may reject an anticipatory bail application when custodial interrogation is deemed necessary for a thorough investigation, even if the applicant argues that such interrogation isn't required. Further, while custodial interrogation can be a factor in denying anticipatory bail, it is not the sole determinant, and courts will also consider other factors related to the severity of the offense and the need for a comprehensive investigation.
17. In the above facts and circumstances and considering the observations on the legal aspect of the matter, as applicant is actively involved in the offence, I have absolutely no doubt that if applicant is equipped with such an order of anticipatory bail before he is interrogated by the Police, in that event, it would greatly harm the investigation and would impede the prospects of unearthing the serious offence and applicant may again indulge in such type of criminal activities. Therefore, I do not find any exceptional ground to exercise its discretionary jurisdiction under Section 482 of the BNSS to grant anticipatory bail. More so, investigation is still going on in the present case. It is settled proposition of law that power exercisable under Section 482 BNSS, is somewhat discretionary in character and it is to be exercised with caution in exceptional cases.
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18. Hence, the present application seeking for anticipatory bail is hereby rejected.
19. 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.
(DIVYESH A. JOSHI,J) AMIT ITALIAN Page 17 of 17 Uploaded by AMIT DAHYABHAI ITALIAN(HCW0112) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:56:16 IST 2025