Gujarat High Court
Bagdiya Chirag Labhubhai vs State Of Gujarat on 13 February, 2025
NEUTRAL CITATION
R/CR.MA/3149/2025 ORDER DATED: 13/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 3149 of 2025
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BAGDIYA CHIRAG LABHUBHAI
Versus
STATE OF GUJARAT
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Appearance:
MS KITTY S MEHTA(7025) for the Applicant(s) No. 1
MR KRUTIK PARIKH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 13/02/2025
ORAL ORDER
[1.0] RULE. Learned APP waives service of notice for the respondent
- State of Gujarat.
[2.0] By way of the present application under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11192011240756 of 2024 registered with Bopal Police Station, Ahmedabad Rural for the offence punishable under Sections 61, 316(2), 319(2), 336(2), 336(3), 336(4), 338 and 340(2) of the Bharatiya Nyaya Sanhita, 2023 (for short "BNS") and sections 66(C) and 66(D) of the Information Technology Act.
[3.0] Learned advocate for the applicant has submitted that the applicant herein is not named in the FIR and has been falsely implicated in the present case. Further, there is no any allegation against the present applicant and he is neither in contact with the complainant nor has received any payment from the complainant. The present applicant is implicated only on the basis of statement of one Vivek Vadodaria which has no evidentiary value in the eyes of law. In Page 1 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025 NEUTRAL CITATION R/CR.MA/3149/2025 ORDER DATED: 13/02/2025 undefined the said statement it has been stated that present applicant has received Rs.4 lakh which has gone in the account of co-accused Gunjan Sardhara. The applicant is not having any past antecedent and is a law abiding citizen. Further, nothing is required to be recovered or discovered from the present applicant. Further, nature of allegations 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. In view of the above, the applicant may be granted anticipatory bail.
[4.0] The learned APP appearing for the respondent-State has opposed the application on the ground that the present applicant is the main conspirator and he has committed the offence by developing a mobile application under the pretext of Motilal Oswal Finance Group by forging the letter head and tax clearance certificate in the name of Motilal Oswal Group Company and provided online VIP Service group link wherein the applicant added the present complainant as part of criminal conspiracy by providing over the counter membership by forging the certificate in the name of Motilal Oswal Group and receiving different bank accounts from the complainant under the pretext of making investments in the stock market in the name of "Manaba Finance" IPO and "Deccan Transcon Leasing Ltd." IPO. Further, the complainant was lured under the pretext that he will get huge profit and on such profit he had to pay 20% service charge and 15% short term income tax on the profit to the tune of Rs.1,43,49,110/- online and thereby the applicant has committed the offence. Further, the investigation in the present case is at nascant stage and therefore, custodial interrogation of the applicant is necessary as the applicant has forged the Tax Notification Letters and other documents of Motilal Oswal Group and even the applicant has Page 2 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025 NEUTRAL CITATION R/CR.MA/3149/2025 ORDER DATED: 13/02/2025 undefined four similar type of past antecedents and therefore, if protected with shield of anticipatory bail then the possibility of indulging in similar offence and tampering with evidence cannot be ruled out. In view of the aforesaid fact, custodial interrogation of the applicant is very much important for qualitative investigation of the offence. Therefore, he has requested to dismiss the present application.
[5.0] The Court has to consider the involvement of the accused in the alleged offence and as to whether prima facie it appears that accused has committed an offence, is required to be considered. So far as the anticipatory bail is concerned, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant of the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused;
(v) larger interest of the public or the State and similar other considerations are required to be considered.
[6.0] Heard learned advocates appearing for the respective parties at length and perused the investigation papers.
[7.0] Herein, the FIR is filed at the instance of unknown person wherein it is stated that as a part of criminal conspiracy one Ramdev Agrawal impersontated himself as the Managing Director of Motilal Oswal Company and he added complainant's mobile number in the Page 3 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025 NEUTRAL CITATION R/CR.MA/3149/2025 ORDER DATED: 13/02/2025 undefined said forged group namely "Motilal Oswal Finance Group" and sent link of one "VIP Service Group" and provided the false and misleading information to the complainant in the name of Motilal Oswal Group. The complainant was lured to become the member of said group and forged certificate of Motilal Oswal Group came to be issued mentioning that present complainant has become over the counter member of the said group and thereafter, the complainant was lured to download the application from the play store and after downloading the mobile app, complainant got ID and PW from the accused and by sending different bank account details, the accused persons have tempted the complainant for short term gain and made him make investment in Manaba Finance IPO and Deccan Transcon Leasing Co. IPO and the complainant was asked to deposit 20% service charge and 15% short term income tax on the profit and thereby Rs.1,43,49,110/- came to be transferred by the complainant which came to be received by the applicant.
[7.1] Out of the said amount, initially the complainant has deposited 15% towards tax i.e. Rs.41,74,033/- in bank account held with Bank of India, which was in turn transferred to the bank account of Vardhman Enterprise held with IDFC Bank and thereafter, the said account was transferred in the account of one Gunjan Sardhara (co-accused) and the said amount of Rs.41,74,033/- was withdrawn by the present applicant through self-cheque and through ATM. Thus, prima facie involvement of the present applicant is revealed. This is not a case wherein merely based on the statement of co-accused the applicant is involved. A bare perusal of the record makes it clear that the applicant is involved in the offence and even money trail is found in his account and hence, the argument canvassed by the learned advocate for the applicant that the applicant is enroped merely on the basis of Page 4 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025 NEUTRAL CITATION R/CR.MA/3149/2025 ORDER DATED: 13/02/2025 undefined statement of co-accused is not sustainable. Insofar as the statement of co-accused is concerned, it provides clue to the investigating agency as to how to investigate the case and thereafter the Investigating Officer has to collect evidence against the person who has been named as an accused. In light of the above provisions, there is no bar on considering the statement of co-accused for investigation purposes. At this stage, it is relevant to note that the coordinate Bench of this Court has observed in the case of Mohmed Salim abdul Rasid Shaikh v. State of Gujarat, reported in 2001(2) GLR 1580, in para 12, as under:
"...It is pertinent to note that the prosecution case rests mainly on circumstantial evidence and police has received a clue against the present applicant from the statement of co-accused, already arrested. Irrespective of the fact that statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation..."
Hence, argument canvassed by the learned advocate for the applicant that based on the statement of co-accused, applicant cannot be arraigned as an accused, is not acceptable.
[7.2] Herein, in collusion and connivance, by hatching conspiracy the applicant has received the money. It is needless to say that in the case of criminal conspiracy, direct evidence would be hardly available and for that, whatever evidence is produced by prosecution with attending circumstances, the Court has to infer the intention of accused. This Court is of the considered opinion that if the present accused is granted anticipatory bail, possibility of accused misusing his liberty and tampering with evidence of prosecution cannot be ruled out.
[8.0] Even otherwise the applicant is facing charge for the offences punishable under Sections 61, 316(2), 319(2), 336(2), 336(3), 336(4), Page 5 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025 NEUTRAL CITATION R/CR.MA/3149/2025 ORDER DATED: 13/02/2025 undefined 338 and 340(2) of the BNS. The applicant has forged the rubber stamp and letter head of Motilal Oswal Group which is a reputed company and in the name of Motilal Oswal Company, accused person impersontated himself as Managing Director of the Motilal Oswal Group and added the complainant in the said forged group of Motilal Oswal Group and based on misleading statement of false information creating forged documents of Motilal Oswal Group, took the complainant in confidence and lured him to make investment in the stock market and under the pretext of huge profit, made him to deposit 20% as service charge and 15% as short term income tax on the profit and initially Rs.41,74,033/- are received from the complainant and other money trail is also received in the account of the present applicant. Hence, prima facie invovlement of the applicant is found. Present is not a case wherein complaint has been made with a view to humiliate or tarnish the image of the present applicant. Herein, sufficient material is collected and case is based on documentary evidence which are yet to be recovered qua other victims also and therefore also, custodial interrogation is required.
[8.1] Further, sections 338 and 340(2) of the BNS are punishable with imprisonment upto 10 years and therefore also, the applicant is not entitled to the relief as sought for. Further, while enlarging the accused on bail, the Court has to consider the interest of prosecution. Herein, the accused is having four similar nature of past antecedents and he has indulged in similar type of activities and of threatening the witnesses. While deciding the bail application, societal interest has to be considered by the Court and considering the potential threat to the witnesses, no case is made out to grant anticipatory bail to the present applicant. Considering the peculiar facts of the case on hand and evidence collected during the investigation against the present Page 6 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025 NEUTRAL CITATION R/CR.MA/3149/2025 ORDER DATED: 13/02/2025 undefined applicant, I have no hesitation to say that prima facie it appears that this is not a case wherein the applicant is falsely enroped. Considering the attending circumstances, this is not a case to exercise the jurisdiction.
[9.0] In aforesaid backdrop, custodial interrogation is necessary. When serious offences are disclosed and involvement of an accused prima facie established then, the Court would be loath to lean in favour of grant of pre-arrest bail in absence of any other overriding considerations. The alleged offence is in nature of white collar and socioeconomic offence, this Court is conscious with the safeguards provided under Section 482 of the BNSS (section 438 of the CrPC) and concept of the personal liberty. But herein, I am of the considered view that, the present offence is committed very smartly which is not just an offence against any individual rather the largest societal interest and in such circumstances, the delicate balance is required to be maintained between two rights one against the personal liberty and second societal interest. Arrest is part of the process of investigation and intended to secure several purposes in which the accused may provide information, during the the discovery of material facts and relevant information.
[10.0] In such circumstances, when investigation is at preliminary stage, if anticipatory bail is granted, it may hamper the investigation and to collect the material and more information, and find out the involvement of another person custodial interrogation is also necessary. At this stage, reference is required to be made to the decision of 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 and (iii) Page 7 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025 NEUTRAL CITATION R/CR.MA/3149/2025 ORDER DATED: 13/02/2025 undefined 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 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 the 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 prearrest 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 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 Page 8 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025 NEUTRAL CITATION R/CR.MA/3149/2025 ORDER DATED: 13/02/2025 undefined 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"
[10.1] Further, in the case of Pratibha Manchanda and Another vs. State of Haryana and Anr. reported in (2023) 8 SCC 181, the Hon'ble Apex Court has held that the relief of anticipatory bail is aimed at safeguarding individual rights but the tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting larger public interest of the society. In case of forgery and cheating of innocent people, the Court should be cautious and in such scam, if the accused exploit the vulnerable individual and the communities, due to such scam which result not only into financial losses for individuals and investors but also disrupt development projects, erode public trust and hinder socio-economic progress. The Hon'ble Supreme Court in the said decision observed as under:
"Criminal Procedure Code, 1973 - S.438 - Anticipatory bail - Grant of - Factors and parameters that need to be kept in mind by court - summarized - Held, 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.
Penal Code, 1860 - Ss. 406, 420, 467, 468, 471 and 120-B - Anticipatory Bail - Grant of, in FIR under the abovesaid sections
- Whether justified - Case where facts speak for themselves and element of criminality cannot be ruled out at anticipatory bail stage - custodial interrogation of all suspects imperative to unearth the truth - joining investigation with protective umbrella provided by pre-arrest bail whether will render exercise of eliciting the truth ineffective - case relating to forged and fabricated document."Page 9 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025
NEUTRAL CITATION R/CR.MA/3149/2025 ORDER DATED: 13/02/2025 undefined [10.2] Further, keeping in mind Law laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre V/s State of Maharashtra and Others reported in (2011) 1 SCC 694. Herein, I have gone through the material available against the accused very carefully and it appears that herein, no complaint has been made with view to humiliate or tarnish the image of the present applicant. Even, in the case of Jai Prakash Singh V/s State of Bihar and Another reported in (2012) 4 SCC 379, the Hon'ble Supreme Court has been pleased to hold:
"Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."
[10.3] The object of anticipatory bail is that person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. In present case, no any such sort of allegation or bias is found out. It is needless to say that order of pre- arrest bail is not a passport to the commission of trial nor a shield against any serious accusation, which adversely affects the society as the alleged theft amount and ornaments are yet to be recovered and as the amount has been siphoned, allegation is in the nature of economic offence and there is involvement of money, applicant is required to be visited class apart. In this regard the Court deems it fit to refer to the judgment of the Hon'ble Apex Court in the case of State of Gujrat vs. Mohanlal Jitamalji Porwal, reported in (1987) 2 SCC 364, the Court in para 5 has observed that:
"The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An Page 10 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025 NEUTRAL CITATION R/CR.MA/3149/2025 ORDER DATED: 13/02/2025 undefined economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner with- out fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest."
Such acts or instances erode the public trust which ultimately hampers the development of nation.
[11.0] In the above facts and circumstances and considering the observations on the legal aspect of the matter, this Court has absolutely no doubt that if applicant is equipped with such an order before he is interrogated by the Police, it would greatly harm the investigation and would impede the prospects of unearthing all the ramifications involved in the conspiracy.
[12.0] Having considered nature and seriousness of the charge, prima facie involvement of accused and possibility of tempering with evidences, it does not appear to be just and proper to exercise the discretion in favour of the applicant and accordingly, the application for anticipatory bail is dismissed. Rule is discharged.
[13.0] It is made clear that the observations made in the present order are tentative in nature and the learned trial Court shall decide the case of the applicant on its own merits without being influenced by the observations made in the present order.
(HASMUKH D. SUTHAR, J.) Ajay Page 11 of 11 Uploaded by MR. AJAY C MENON(HC00939) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:57:59 IST 2025