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2021 DIGILAW 378 (AP)

Rohith Choudhary v. State of Andhra Pradesh

2021-07-02

LALITHA KANNEGANTI

body2021
JUDGMENT This petition is filed under Section 438 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking pre-arrest bail to the petitioner/A2 in the event of his arrest in connection with Crime No.244 of 2020 of Gudivada I Town Police Station, Krishna District registered for the offences punishable under Sections 420, 467, 468 read with 34 of the Indian Penal Code, 1860. 2. The case of the complainant is that he owns agricultural land. In the year, 2012 accused No.l, who belongs to Kolkata developed acquaintance with the complainant. Accused No.l brought to the knowledge of the complainant that tyre re-cycling business is very profitable business and that he could act as consultant for the said business. Believing the same the complainant started tyre recycling business in the year 2012 and undertook Surya Rubber Industries erection works and obtained factory license. Since 2013 the complainant started attending the factory as work commenced and is taking care of the same. On the advise of accused No.l, the complainant submitted application for I.E.C. license and license was also granted to him. The complainant bore all the expenses but accused No.l without informing the complainant about the license left to Kolkata. The complainant tried to contact the accused No.l but his family members used to inform that the accused No.l is not present in the house. As the complainant has no expertise in the business he has incurred huge loss. Hence, he closed the factory in the year 2015 and also suspended the license relating to the said business. Thereafter in the year 2019 as he received notices from the CTO office the complainant approached said office and the officials questioned him whether he was doing rubber industry business for which the complainant replied that he is not doing the said business and he cancelled the GST. Subsequently the complainant came to know that somebody in Telangana state is running business with the same GST number and is also filing GST returns. On enquiry the complainant came to know that one Rohit Agarwal, petitioner herein is running the business. It is also alleged in the complaint that the accused No.l with an illegal motive sold the license to the petitioner/A2 for huge amount. Basing on the said complaint the present crime is registered. 3. Heard Ms.K.Aruna, learned Counsel for the petitioner and the learned Public Prosecutor for the respondent-State. 4. It is also alleged in the complaint that the accused No.l with an illegal motive sold the license to the petitioner/A2 for huge amount. Basing on the said complaint the present crime is registered. 3. Heard Ms.K.Aruna, learned Counsel for the petitioner and the learned Public Prosecutor for the respondent-State. 4. Learned Counsel for the petitioner submits that in the entire complaint the complainant has narrated the transaction between the parties which took place around the year 2014 and it is also stated that in the year 2015 the complainant has shut down the business. Even as per the complaint all the allegations are against the accused No.l and the name of the petitioner is simply mentioned alleging that he bought the licence from Al. 5. Learned Counsel placed reliance on a decision reported in Bhadresh BipinBhai Sheth V. State of Gujarat and another, (2016) 1 SCC 152 wherein the Hon’ble Supreme Court held as under: “25.2 The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the attesting officer can also be properly evaluated by the Court. 25.3 It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to may serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. 25.4 There is no justification for reading into Section 438 Cr.P.C. the limitations mentioned in Section 437 Cr.P.C. The Plenitude of Section 438 must be given its full play. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. 25.4 There is no justification for reading into Section 438 Cr.P.C. the limitations mentioned in Section 437 Cr.P.C. The Plenitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 Cr.P.C. to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. 25.5 The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor, the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted byteh court should ordinarily be continued till the trial of the case. Learned Counsel further submits that the dispute is between two persons and apart from that A1 has no acquaintance with A2. There are no specific overt acts against the petitioner and all the allegations are against Al. She submits that the petitioner is ready to comply with any of the conditions imposed by the Court and he shall cooperate with the investigation. She further submits that this case does not require any custodial interrogation as such petitioner is entitled for pre-arrest bail. 6. She submits that the petitioner is ready to comply with any of the conditions imposed by the Court and he shall cooperate with the investigation. She further submits that this case does not require any custodial interrogation as such petitioner is entitled for pre-arrest bail. 6. Learned Public Prosecutor on the other hand submits that the investigation so far done reveals that joint account was opened in Indus Bank in the name of A2 and the complainant and the GST license number which is given is also of A2, through which the communications were received by A2. Learned Public Prosecutor further submits that both Al and A2 colluded together and they have forged the documents. Some documents are already recovered from the officials and they are in the custody of the Police. But they have to recover some more documents from the petitioner as well as Al. As such the petitioner is not entitled for pre-arrest bail at this stage. 7. It is settled law that while dealing with an application for pre-arrest bail, the Court has to take into consideration the nature of accusations, nature of evidence in support thereof, the severity of the punishment which conviction will entail. The character, behavior, 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 and the reasonable grounds which are in favour of the accused. The whole dispute is with regard to GST license and tampering with the same. All the official documents were recovered and are in custody of the Police. 8. In view of the above observations, this Court deems it appropriate to grant pre-arrest bail to the petitioner however, by imposing certain conditions. 9. Accordingly, this Criminal Petition is allowed. The petitioner/A2 shall be released on bail in the event of his arrest in connection with Crime No.244 of 2020 of Gudivada I Town Police Station, Krishna District on condition of executing self bond for Rs. 1,00,000/-(Rupees one lakh only) with two sureties for a likesum each to the satisfaction of the Station House Officer, Gudivada I Town Police Station, Krishna District. The petitioner shall appear before Station House Officer, Gudivada I Town Police Station, Krishna District once in a week between 10:00 A.M. and 12:00 noon till investigation is completed. 1,00,000/-(Rupees one lakh only) with two sureties for a likesum each to the satisfaction of the Station House Officer, Gudivada I Town Police Station, Krishna District. The petitioner shall appear before Station House Officer, Gudivada I Town Police Station, Krishna District once in a week between 10:00 A.M. and 12:00 noon till investigation is completed. Consequently, miscellaneous applications pending, if any, shall stand closed.