Gujarat High Court
Akash Ganeshbhai Makwana vs State Of Gujarat on 5 December, 2023
NEUTRAL CITATION
R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 20549
of 2023
FOR APPROVAL AND SIGNATURE: Sd./-
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AKASH GANESHBHAI MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MS ANUSHREE M SONI(11431) for the Applicant(s) No. 1
MR TIRTHRAJ PANDYA, PUBLIC PROSECUTOR for the Respondent(s) No.
1
MR KUMAR TRIVEDI, for brother of the deceased
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/12/2023
CAV JUDGMENT
Rule. Learned APP waives service for the Respondent-State and learned Advocate Mr. Trivedi waives for the First Page 1 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined Informant.
1. By way of this application, filed under Section 438 of the Code of Criminal Procedure, 1973 ('the Code', herein after), the applicant has prayed to grant him pre-arrest / anticipatory bail in connection with the offence registered as FIR No. 11205035230524 of 2023, with Nakhatrana Police Station, District: Kutch, under Sections 306, 389, 120B and 34 of the Indian Penal Code.
2. The brief facts of the case are as under;
The first informant, who was discharging duties as Police Inspector, Nakhatrana Police Station, Kutch-Bhuj (West), at the relevant point of time, lodged the FIR in question with Nakhatrana Police Station on 05.06.2023, wherein, it is stated that on 03.06.2023, at about 09:30 Hrs., Accidental Death Entry bearing Registration No. 25 of 2023, came to be registered, as provided under Section 174 of the Code, at the instance of one Dr. Mayursinh Jadeja, who was discharging duties as a Medical Officer at G.K. General Hospital, Bhuj, wherein, it is stated that one Dilip Bhagubhai Gagal, Age: 32, residing at Madhapar, committed suicide by hanging on 03.06.2023 at about 07:00 hrs. in the bushes, situated near S.R. Petrol Pump on Deshalpar-Naliya road.
2.1 After the registration of the accidental death entry, the concerned PI, sent the body of the deceased for carrying out post mortem, recorded the panchnama of the place of incident Page 2 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined and also proceeded to record the statements of the concerned persons.
2.1.1 During the course of recording of the statement of one Jagdishbhai Bhagwanbhai @ Bhagubhai Gagal, who happens to be the elder brother of the deceased Dilip Gagal, it was disclosed to the police that one lady (i.e. Ms. D. - Original Accused No.2) has lodged a complaint against the deceased Dilip Gagal with Mankuva and therefore, his brother appears to have committed the suicide. He, further, requested the concerned PI to carry out investigation on the line of honey trap, black mailing, as well.
2.1.2 Pursuant to the above, the first informant inquired with the Mankuva Police Station and he came to know that one Ms. D., i.e. Original Accused No.2, has lodged an FIR being 11205013230272 of 2023 with Mankuva Police Station for the offence punishable under Sections 376(1) and Sections 3(2)(5), 3(1)(2) (1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1988 (in brief, 'the Prevention of Atrocities' Act).
2.1.3 It is further stated in the FIR in question that the PI - First Informant received a report in connection with the investigation done with regard to the FIR being 11205013230272 of 2023, registered with Mankuva Police Station for the purpose of taking the same on the record of Accidental Death Entry No. 25 of 2023, which contained the detailed statement dated 04.06.2023 of Ms.D. - Original Page 3 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined Accused No.2, which was given by her to the concerned IO in the presence of her mother Liliben, Shri. Bindiben Pithiya, Social Worker, Kachchh Mahila Vikas Sangathan, Bhuj and Ms. V.R. Chavda, PSI.
2.1.3.1 Ms.D. - Original Accused No.2 in her statement dated 04.06.2023 has stated that she was studying in F.Y.B.A. in Arts and Commerce College, Vasna, Ahmedabad, but, she was not attending the college regularly and instead, she was working in a company named 'Welset Holidays', which was run by one Ajay Prajapati - Original Accused No.3. The company used to book hotels in different cities for their clients, who wanted to go on a tour. However, as she did not get her salary and the company was closed, she left the job.
2.1.3.2 It is further stated by Ms. D. that after the aforesaid company was closed, she made a request to Ajay Prajapati - Original Accused No.3 to start a business. However, nothing could be worked out. Ms. D. stated that somewhere in the month of May, 2023, she received a phone call from Ajay Prajapati and he asked her to come to his office and after Ms. D. reached his office, she was told by Ajay that there is a work for which, she shall get a big amount. Thereafter, one Akhlaq Pathan, i.e. Original Accused No.4, who had come from Vadodara, told them that Ms. D. has to make acquaintance with a wealthy person from Kuwait and to ask him to come here and then, to make allegations of commission of rape by him. Akhlaq Pathan then made Ms. D. to talk to Manisha Gauswami - Original Accused No.1. It is the say of Ms. D. that it Page 4 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined was agreed that for the aforesaid work, she shall be paid huge amount. It is further the say of Ms. D. that Ajay Prajapati had asked Akhlaq Pathan to pay Rs.2,00,000/- as advance.
2.1.3.3 It is further the say of Ms. D. that after the said meeting, she received a Whatsapp call from Akhlaq Pathan - original accused No. 4 on 18.05.2023, who informed her that now the work has to be started. Akhlaq Pathan also gave two Whatsapp numbers of Manisha Goswami - Original Accused No.1. It is the say of Ms. D. that on 25.05.2023, Manisha Goswami asked for her selfie and she sent her the same. Ms. D. was again asked to sent her selfies by Manisha Goswami on 26.05.2023 and 27.05.2023 and the same were also sent by Ms. D.. It is the say of Ms. D. that on 28.05.2023, while she had gone for shopping, she received a call from Manisha Goswami, who told her that the concerned person (i.e. the deceased Dilip Gagal) wants to see your picture and hence, send your selfie. Ms. D. told Manisha Goswami that she is doing shopping and then she took her selfie at a shoes shop and sent the same to Manisha Goswami. Thereafter, Manisha Goswami told Ms. D. that the concerned person wants to talk to her over video call and Ms. D. talked to the concerned person over video call, accordingly. Thereafter, on the very same day, in the evening at about 04:00 p.m., Manisha Goswami called Ms. D. and informed her that the name of the concerned person was Dilip Gagal and that he is the owner of about 197 trucks and is a millionaire.
2.1.3.4 Ms. D. further has stated in detail, in her statement Page 5 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined dated 04.06.2023, as to how she inquired about the personal details of Manisha Goswami, i.e. as to who is she and why and in which offence she is in prison.
2.1.3.5 Ms. D. then has stated that on 28.05.2023, she received a video call from the deceased Dilip Gagal. On 30.05.2023, Ms. D. sent a Whattsapp message to the deceased Dilip Gagal and expressed her desire to visit Mogul Maa Temple, which is situated near Bhuj. Ms. D. also told the deceased Dilip Gagal that she also wants to purchase some local clothes, as she had told the deceased that she is running a boutique. On 31.05.2023, Ms. D. again had a conversation through message with the deceased Dilip Gagal in regard to the above and she asked the deceased to book her bus ticket for 02.06.2023. The deceased Dilip Gagal booked bus ticket for Ms. D., as per her say, after obtaining her identity proof. When Ms. D. intimated Manisha Goswami about the same, she told Ms. D. that she has to come to Bhuj one day in advance, i.e. on 01.06.2023. When Ms. D. informed Ajay Prajapati - Original Accused No.3 about the same, he inquired about the advance payment. It appears that though Ajay Prajapati had, initially, demanded Rs.2,00,000/- towards advance, later on he agreed to accept Rs.1,00,000/-, after some reluctance. The aforesaid amount was sent through an aangadia firm.
2.1.3.6 After getting the money, Ms. D. left for Bhuj in a car arranged by Ajay Prajapati - Original Accused No.3, which was being driven by his friend. On reaching Bhuj, they met the husband, i.e. Original accused No. 5, of Manisha Goswami.
Page 6 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined Thereafter, Ms. D. was made to board another car, which was being driven by one Aziz - Original Accused No.9, who took them to Hotel Odhav. It is the say of Ms. D. that she had received a 'good morning' message from the deceased Dilip Gagal on 02.06.2023. Thereafter, Ms. D. was taken to the office of the present applicant, i.e. Original Accused No.6, which is situated at Anjar, where, Ms. D. was briefed, in detail, by the present applicant and his wife Komalben, i.e. Original Accused No.7, as to how to carry out the entire plan. After the briefing was over, Ms. D. boarded a bus from Ahmedabad to Bhuj and reached Bhuj at about at about 02:00 p.m.. On reaching Bhuj Ms. D. called the deceased Dilip Gagal, who came to pick her- up in his white colour Kia Seltos car. Thereafter, Ms. D. was taken to Seven Sky Hotel, where, Room No. 120 was already booked on her own identity proof. The deceased Dilip Gagal, then, left Ms. D. at the hotel and asked her to call, whenever she is ready to go to Mogul Maa temple.
2.1.3.7 Ms. D. further has stated, in her statement dated 04.06.2023, that in the evening at about 06:00 p.m. on 02.06.2023, she had made a Whattsapp call to the deceased Dilip Gagal and asked him to take her to temple. Accordingly, the deceased arrived at the hotel at about 06:45 p.m. and they reached the temple at about 08:30 p.m.. While returning from the temple, when the deceased Dilip Gagal inquire about the dinner, Ms. D. asked him to get the food packed and that she will have dinner at her hotel room. It is further stated by Ms. D. that after the dinner was packed, the deceased Dilip Gagal again inquired, as to whether she would like to have it at her Page 7 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined hotel room or she would like to have it at the farm house of his friend and Ms. D. agreed for the latter.
2.1.3.8 When Ms. D. reached the farm house along with the deceased Dilip Gagal at about 10:15 p.m., she found that on the gate it was written 'High Land' in English language. Ms. D. also noticed that there were CCTVs installed on the said farm. It is, further, the say of Ms. D. that after entering the room, as per her plan, she spent about 15-20 minutes in the room, with a view to show that some incident has taken place. Before leaving the room, under the pretext of going to washroom, Ms. D. went in the bedroom and disturbed the bed-sheet lying on the bed, so as to given an appearance that some incident has taken place. Ms. D. then came out and, in front of the CCTV, she acted as if she was feeling giddiness and they left the farm house at about 10:45 p.m. to go to Hotel Seven Sky. In front of the CCTV installed at the said hotel also, Ms. D. acted as if she is unwell.
2.1.3.9 Ms. D., in her statement, has further stated that on reaching the hotel, she got a little scared, since, she did not have physical relation with the deceased Dilip Gagal. Ms.D. then talked to Manisha Goswami - Original Accused No.1, the present applicant - Original Accused No.6 and his wife Komalben - Original Accused No.7 over a conference call. Ms.D. was then instructed to go to G.K. General Hospital. Thereafter, as planned earlier, Aziz - Original Accused No.9 called on 108 ambulance service and Ms. D was then taken to the hospital. At hospital, Ms. D. filed the FIR being Page 8 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined 11205013230272 of 2023, with Mankuva Police Station officials against the deceased Dilip Gagal.
2.1.3.10 In her statement, Ms. D. has clearly stated that the deceased Dilip Gagal neither took her to the farm house against her wish and will nor did he committed the offence of rape, as alleged by her in her FIR. Ms. D. further stated that she was promised to be paid Rs.1,0000,000/- (One Crore) out of the amount of Rs.4,0000,000/-, which was to be extorted from the deceased Dilip Gagal and for the said purpose, she had filed the FIR being 11205013230272 of 2023, with Mankuva Police Station.
2.2 Thus, the First Informant registered the FIR in question against total nine accused persons, including the present applicant, who is shown as original accused No.6, therein.
2.3 Since, the present applicant apprehends his arrest in connection with the aforesaid FIR, he has filed the present application.
3. Heard, learned Sr. Advocate, Mr. Oza, appearing with learned Advocate, Ms. Soni, for the applicant and learned APP, Mr. Pandya, assisted by learned Advocate, Mr. Trivedi, for the First Informant.
4. Learned Sr. Advocate, Mr. Oza, assisted by learned Advocate, Ms. Soni, would submit that the police, in connivance with Ms. D., Original Accused No.2, has filed an FIR, Page 9 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined which is totally false, frivolous and concocted. He would further submit that the statement of Ms. D., Original Accused No.2, which is recorded while she is in custody, is made the basis for filing an FIR, at the instance of the first informant. It was, thus, submitted that the police has played a vital role in entraping the petitioner by acting as 'Hand in Glove', with Ms. D and other accused persons.
4.1 It was submitted that on a plain reading of the FIR in question, no ingredient of abetment of suicide or extortion is made out qua the present applicant, as alleged in the FIR in question.
4.2 He would further submit that present applicant is an advocate by profession, practicing at District Court, Kutch, who is following his vocation religiously in the utmost professional manner and that he is not a flyby person. It was submitted that apart from giving legal advice to his client, the present applicant has played no other role in the commission of the alleged offence and that itself would go to indicate that no custodial interrogation of the applicant is necessary or required.
4.3 He would also submit that the concerned IO has, practically, concluded the investigation, as two charge-sheets are already been filed qua other accused persons, who have been arrested by the police, and that would indicate that the custodial interrogation of the present applicant is not necessary.
Page 10 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined 4.4 It was submitted that the present applicant never met the accused persons, except, on 02.06.2023, i.e. the day on which the legal advice was given to some of the accused persons. It was submitted that the present applicant neither met nor spoke to the deceased Dilip Gagal at any point of time. It was submitted that the applicant was merely discharging his duties as a legal adviser to his clients and he had absolutely no knowledge of the design or plan made by the accused persons, for commission of the heinous offence.
4.5 It was submitted that main kingpin is Ms. Manisha Goswami, i.e. original accused No.1, who is presently in judicial custody, as an under-trial prisoner, in connection with another offence. It was she, who planned the entire honey-trap scam, hand in glove with Ms. D., Original Accused No.2, to extort a sum of Rs.4,00,00,000/- (Rupees Four Crore) from the deceased Dilip Gagal. Thus, it was submitted that the present applicant has not played either any active or passive role in the commission of the alleged offence.
4.6 Learned Sr. Counsel would submit that the concerned IO instead of recording the statement / confession of Ms. D., Original Accused No.2, as provided under Section 164 of the Code, recorded her confession, while she is in custody and made such confession as basis of registering first information report. Thus, in view of provisions of the Evidence Act, the same has no value in the eyes of law and therefore, the FIR filed on the basis of such a statement / confession cannot Page 11 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined sustained.
4.7 Learned Sr. Advocate Mr. Oza took this Court through the FIR in question and submitted that, in fact, the present applicant has been falsely roped in the FIR by making false allegations by Ms. D., Original Accused No.2, who herself, at the earlier point of time, had filed a false FIR against the deceased Dilip Gagal. It was submitted that Ms. D., Original Accused No.2, is a habitual lire and therefore, her statement cannot be believed.
4.8 It was, therefore, submitted that the applicant be released on pre-arrest bail, as there is no requirement of his custodial interrogation and that he is not a flyby and therefore, there is no risk of his evading the investigation or trial. It was submitted that the petitioner is very much available and he is ready to cooperate with the investigation, if so directed by this Court. It was therefore prayed that the discretion be exercised in favour of the present applicant and this application be allowed.
5. On the other hand, learned APP, Mr. Tirthraj Pandya, appearing for the Respondent-State and assisted by learned Advocate, Mr. Trivedi, appearing for the First Informant strongly opposed this application and submitted that the present applicant took advantage of his position of being a lawyer and joined hands with Ms. Manisha Goswami, original accused No.1, and helped her to design the plan to entrap the deceased Dilip Gagal in honey-trap and to extort Page 12 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined Rs.4,00,00,000/- (Rupees Four Crore) from the deceased. It was submitted that Ms. D., Original Accused No.2, also has played an active role as a trap-girl.
5.1 It was submitted that on bare reading of the FIR in question, it appears that the entire plan was designed at the instance of Ms. Manisha Goswami, original accused No.1, in connivance with the other accused persons, including the present applicant, who is a practicing advocate.
5.1.1 It was submitted that the entire episode began at the office of the present applicant, where, Ms. D. had gone to take the instructions, as to in which way / manner she should trap the deceased Dilip Gagal and how to file a false complaint for rape against the deceased.
5.2 It was submitted that the pre and post offence conduct of the present applicant clearly indicates that he has played an active role in commission of the alleged offence of 'Honey Trap'.
5.3 It was further submitted that even the CCTV footage obtained during investigation indicate that at late night, during wee hours, the present applicant along with other co-accused had gone to the G.K. General Hospital, Bhuj, where, Ms. D., Original Accused No.2, was admitted as an indoor patient to demonstrate that she was raped. It was submitted that this aspect would bridge the gap between the pre and post offence role played by the present applicant. It was submitted that due Page 13 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined to false and frivolous complaint filed by Ms. D., Original Accused No.2, for offence of rape and other offences in connivance with the co-accused, including the present applicant, the deceased Dilip Gagal committed suicide. Thus, the offence of abetment, prima facie, is clearly made out against the present applicant as he was honey trapped.
5.4 Learned APP Mr. Pandya also took this Court through the report filed by the concerned IO and submitted that the present petitioner is on the run and is not available for investigation and therefore, the concerned IO has obtained warrant under Section 70 of the Code against the present applicant. It was submitted that this would show that the petitioner is not only avoiding his arrest but also he is not cooperating with the investigation. It was therefore submitted that this application be rejected.
6. No other and further submissions made or arguments canvassed by either side.
7. Having heard the learned Advocates for the parties and having perused the material on record, at the outset, it would be profitable to refer to the decision of the Hon'ble Apex Court in 'Prahlad Singh Bhati Vs. N.C.T. Delhi & Another', reported in (2001) 4 SCC 280, wherein, the Apex Court has observed that the legislature has used the word "reasonable grounds for believing" instead of "the evidence", which means that the court dealing with the grant of bail can only satisfy it, as to whether there is a genuine case against the accused and Page 14 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined that the prosecution will be able to produce prima facie evidence in support of the charge or not. The relevant observations, reads thus;
"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 purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the 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 excepted , at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
7.1 Noticing the legislative intent behind introduction of Section 438 of the Code and after going through the earlier Page 15 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined judgment in the case of 'P. Chidambaram vs. Directorate of Enforcement', reported in AIR 2019 SC 4198, it would be relevant to refer to the observations made by the Hon'ble Apex Court at Paragraph-19 in 'Pratibha Manchanda vs The State of Haryana', reported in AIR 2023 SC 3307, which reads as under;
19. 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."
7.2 What transpires from the above dictum is that the prosecution, at this stage, is required to prove and produce prima facie evidence in support of the charge and to show that there are reasonable grounds for believing that the concerned accused is involved in the offence, alleged against him. Arrest is the part of procedure for several other purposes, including Page 16 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined securing the presence of the accused at the time of trial. Relevant information, which the accused may provide during the custodial interrogation, is one of the core issues. At the same time, the Court deciding the pre-arrest bail is required to struck a balance between the individual right of freedom or liberty and the right of the IO to interrogate the accused. The Hon'ble Apex Court observed that refusal to grant pre-arrest bail shall not necessarily result in denial of right of individual liberty, guaranteed under the constitution of India, as it is the extra-ordinary discretion, which is to be exercised, sparingly.
7.3 In case of 'CBI Vs. Santosh Karnani & Anr.', reported in 2023 SCALE 6 250, in Paragraph-24 it has been held by the Hon'ble Apex Court as under;
"24. The time-tested principles are that no straitjacket formula can be applied for grant or refusal of anticipatory bail. The judicial discretion of the Court shall be guided by various relevant factors and largely it will depend upon the facts and circumstances of each case. The Court must draw a delicate balance between liberty of an individual as guaranteed under Article 21 of the Constitution and the need for a fair and free investigation, which must be taken to its logical conclusion. Arrest has devastating and irreversible social stigma, humiliation, insult, mental pain and other fearful consequences. Regardless thereto, when the Court, on consideration of material information gathered by the Investigating Agency, is prima facie satisfied that there is something more than a mere needle of suspicion against the accused, it cannot jeopardise the investigation, more so Page 17 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined when the allegations are grave in nature."
7.3.1 Keeping in mind the aforesaid principle of law and reverting back to the facts of the present case, what transpires that firstly Ms.D, i.e. Original Accused No.2, contacted Ms. Manisha Goswami- original accused No.1, who is lodged in jail and met the present applicant and other accused persons, after reaching Bhuj. According to the FIR, the entire plan of Honey Trap was discussed at the office of the present applicant. Ms. D., i.e. Original Accused No.2, was taught, as to how to lure the deceased Dilip Gagal. She was also given tips as to how should she keep her behaviour, while accompanying the deceased Dilip Gagal. Ms. D., i.e. Original Accused No.2, was also taught, as to how to create a false case of rape against the deceased Dilip Gagal. All this was done under the instructions of Ms. Manisha Goswami, Original Accused No.1, at the instance of of the present applicant. It may be noted that the care was taken to the extent that, while designing the entire scam, Ms. D., Original Accused No.2, was also asked to act as if, she is feeling drowsy and giddiness and to cry, after coming out from the room, wherein she was supposed to stay with the deceased Dilip Gagal so that the same is recorded in the CCTV installed on the farm house. Ms. D., Original Accused No.2, was also given a specific instructions to indulge in physical relation with the deceased Dilip Gagal. Ms. D., Original Accused No.2, was also given instructions, as to how to reach G.K. General Hospital through 108 ambulance service, where, the present applicant along with other co-accused was supposed to meet her to lodge the complaint and that is how Page 18 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined the FIR against the deceased Dilip Gagal came to be filed. Ms. D., Original Accused No.2, was also allegedly tutored that as she belongs to the Scheduled Castes community, she should also made the allegations of utterances of casteist slurs against the deceased, Dilip Gagal, so as to attract the rigors of the provisions of the Prevention of Atrocities Act, against the deceased Dilip Gagal. Thus, from the above, it appears that a well thought scam or plan was prepared and was executed with the perfection under the guidance of the co-accused, including the present applicant and that is how, the FIR being 11205013230272 of 2023, came to be registered with Mankuva Police Station for the offence punishable under Sections 376(1) and Sections 3(2)(5), 3(1)(2) (1) of the Prevention of Atrocities Act.
7.3.2 What further revealed from the record is that the deceased Dilip Gagal was shocked, horrified and dumb stuck due to registration of such a false and frivolous FIR against him. The deceased Dilip Gagal could not bear the false allegations made against him and he committed the suicide.
7.3.2 In nutshell, at this juncture, what appears from the record and more particularly, from the charge-sheet filed qua the co-accused, is that there are reasonable grounds for believing that the present applicant is prima facie appears to be involved in the alleged offence and in fact, he appears to have played main role, besides Ms. Manisha Goswami, Original Accused No.1.
Page 19 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined 7.4 It is true that the charge-sheet qua other accused have already been filed, but, that does not mean that the custodial interrogation of the present applicant shall not be necessary or does not require. In the case of 'XXX Vs. Arun Kumar & Another', AIR 2022 SC 5705, the Apex Court has observed as under;
"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 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 Page 20 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."
7.4.1 In view of the above, even if, the custodial interrogation of the present applicant may not require, then also the present applicant cannot be granted the pre-arrest bail in view of the serious allegations made qua him and the role attributed to him in the impugned FIR.
7.5 Further, the report of the IO dated 30.11.2023 indicates that the present applicant is not cooperating with the investigation and is avoiding his arrest and therefore, the concerned IO has obtained a warrant, as provided under Section 70 of the Code, qua the present applicant. This would clearly indicate that he is running away from the investigation and as such, he is absconding, as on date. In the case of 'Prem Shankar Prasad vs. State of Bihar', reported in 2021 SCC OnLine SC 955, the Apex Court, in no unclear terms, has observed that a person, who is evading arrest, is not entitled to get the extra-ordinary protection under Section 438 of the Code. The observations made by the Apex Court at Paragraphs- 7.2. to 7.3 runs as under;
"7.2 Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that respondent No.2 - accused is absconding and even the proceedings under sections 82-83 of Cr.PC have been initiated as far as back on Page 21 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to respondent No.2 - accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under sections 82-83 of Cr.PC by simply observing that "be that as it may".
The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.
7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail. In paragraph 14 to 16, it is observed and held as under:
"14. In order to answer the above question, it is desirable to refer to Section 438 of the Code which reads as under:
"438. Direction for grant of bail to person apprehending arrest.--(1) Where any person has reason to believe that he may be arrested on Page 22 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail;
and that court may, after taking into consideration, inter alia, the following factors, namely--
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant 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 applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, Page 23 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined without warrant the applicant on the basis of the accusation apprehended in such application."
The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.
15. In Adri Dharan Das v. State of W.B. [(2005) 4 SCC 303] this Court considered the scope of Section 438 of the Code as under : (SCC pp. 31112, para 16) "16.
Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has 'reason to believe' that he may be arrested in a non-bailable offence. Use of the expression 'reason to believe' shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief' for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be Page 24 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail 'whenever arrested for whichever offence whatsoever'. Such 'blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual's liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed."
16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730] , this Court (of which both of us were parties) Page 25 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined considered the scope of granting relief under Section 438 visàvis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under : (SCC p. 733) "12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as 'absconder'. Normally, when the accused is 'absconding' and declared as a 'proclaimed offender', there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."
It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail."
Thus the High court has committed an error in granting anticipatory bail to respondent No.2 - accused ignoring the proceedings under Section 82-83 of Cr.PC.."
7.6 On the aforesaid premise, this application does not deserve consideration, as from the allegations leveled in the FIR in question as well as the role attributed to the present Page 26 of 27 Downloaded on : Tue Dec 05 20:47:55 IST 2023 NEUTRAL CITATION R/CR.MA/20549/2023 CAV JUDGMENT DATED: 05/12/2023 undefined applicant, the prima facie involvement of the applicant in the heinous offence is made out. In fact, it appears that the present applicant is the centric or pivotal link in the the sequence of events under which the heinous crime was planned / designed, so as to coarse the deceased Dilip Gagal and to extort huge amount from him, and the same was executed with perfection. In view of the above petitioner has failed to make out a case to get extra-ordinary relief of pre- arrest bail.
8. Resultantly, this application fails and is REJECTED in limine. Rule is discharged.
8.1 It is needless to say that the observations made herein above are made for deciding this application only.
Sd./-
(J. C. DOSHI,J) UMESH/-
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