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2023 DIGILAW 1041 (GUJ)

Sanjay Avdheshran Mishra v. State of Gujarat

2023-09-02

HASMUKH D.SUTHAR

body2023
ORDER : 1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - accused has prayed for anticipatory bail in connection with the FIR bearing No.11191065220790 of 2022 registered with Narol Police Station, Ahmedabad for the offences punishable under Sections 381, 406, 408, 411, 420 and 120-B of the Indian Penal Code. 2. At the outset it is required to be mentioned that pursuant to the submissions made by the learned advocate for the applicant on 31.08.2023 this Court passed the following order: “Heard learned advocate Mr. Chakwala for the applicant, he made his submissions and after having heard learned APP Mr. Dabhi, while the Court was not inclined to allow the present application and was going to dictate an order, at that time, learned advocate Mr. Chakwawala for the applicant has submitted that police has caused atrocity and in this regard he wants to make further submissions. In view of above, Learned APP is directed to verify the said fact as well as to place on record the detailed investigation carried out qua applicant and whether applicant has joined investigation and appeared before the police at earlier point of time. Stand over to 02.09.2023.” 3. Today learned APP has submitted that the present applicant has not joined the investigation and he didn’t remain present, even till date he is not traced out and remained absconder, hence, the question of causing of atrocity doesn’t arise. 4. Learned advocate for the applicant has submitted that present applicant is falsely enroped in the offence due to ego clash. He has been falsely implicated into the offence and whatever, allegations levelled against the staff and other people were based on the statement of the co- accused. Accused number 2, 3 and 4 also have left their job from the company and he has nothing to do with the offence, accused has not received any stolen goods, accused has paid all dues also and requested Police to close the proceedings. Even, otherwise offence is not punishable with life imprisonment, the applicant is ready and willing to join the investigation. Hence, he requested to allow the present application. 5. Per-contra learned APP has vehemently opposed the application and stated that charge- sheet is filed, present applicant has not co- operated and present applicant is mentioned absconded in column No. 2 in the charge-sheet. Hence, he requested to allow the present application. 5. Per-contra learned APP has vehemently opposed the application and stated that charge- sheet is filed, present applicant has not co- operated and present applicant is mentioned absconded in column No. 2 in the charge-sheet. There is prima-facie involvement of accused, hence, she has requested to dismiss the application. 6. Having had considered and on perusal of the complaint and investigation papers prima-facie it appears that the alleged transactions are qua trading of gray and raw material fabrics. It appears that there is involvement of goods worth Rs 4,28,44,050/- (Rupees Four Crore Twenty Eight Lakhs Forty Four Thousand and Fifty only). The accused persons in connivance of the present applicant who is the owner of the J. B. Trading firm and in the guise of the sham transaction, siphoned the amount. They have prepared false bills in connivance with other co-accused. Even accused is facing the charge of keeping the stolen goods and on that cause also present applicant is not bonafide purchaser of the goods. Even to unearth the truth, custodial interrogation is also required. Not only that, the accused has remained absconder. On the ground of being absconder, present application is required to be rejected keeping in mind law laid down by the Hon’ble Apex Court in the case of Lavesh Vs. State (NCT OF DELHI) reported in (2012)8 SCC 730 and State of Haryana Vs. Dharamraj 2023 INSC 784 on that ground also application deserved to be dismissed. 7.1 Considering the aforesaid all facts as also the law laid down by Hon’ble Supreme Court in the case of Jayprakash vs. State of Bihar reported in (2012)4 SCC 379 , parameters of grant of anticipatory bail in serious offences are required to be satisfied and further while granting such relief, the Court must record the reasons thereof. Anticipatory bail can be granted only in exceptional circumstances where the Court is prima-facie of the view that the applicant is falsely enroped in the crime and would not misuse his liberty. Herein, no case is made out as the applicant is not falsely enroped in the offence. 7.2 Further, considering the allegation made in the complaint and aforesaid fact and for the qualitative investigation, the presence of applicant is required and custodial interrogation is necessary. Herein, no case is made out as the applicant is not falsely enroped in the offence. 7.2 Further, considering the allegation made in the complaint and aforesaid fact and for the qualitative investigation, the presence of applicant is required and custodial interrogation is necessary. Thus, prima facie it appears that accused has played active role and qualitative investigation is necessary in the matter. 7.3 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 socio economic offence, this Court is conscious with the safeguards provided under Section 438 and concept of the personal liberty. But herein, this court is of considered view that, the present offence is committed very smartly and in very planned manner and methodically 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 is 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 discovery of material facts and to relevant information. In such circumstances if, anticipatory bail is granted may hamper the investigation and to collect the material in the more information, and find out the involvements of another person also custodial and qualitative interrogation is also necessary, therefore, keeping in mind the law laid down by 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) 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. 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 pre-arrest 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. 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 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". 7.4 This court has also kept in mind the 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 . But, going through the material very carefully available against the accused it appears that herein, no complaint has been made with view to humiliating or tarnish the image of the present applicant. 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 under Section 438 is not a passport to the commission of trial nor a seal against any serious accusation, which adversely affects the society. 8. 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 therefore, I have absolutely no doubt that if applicant is equipped with such an order of anticipatory bail 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. 9. Further, the present applicant-accused is involved in white collar offence which constitute a class apart and such economic offence needs to be visited with a different approach. The economic offences adversely affect the economic and social fabric of the country. In such circumstances also, grant of anticipatory bail at this stage would frustrate the very purpose of qualitative investigation. 10. Further, the present applicant-accused is involved in white collar offence which constitute a class apart and such economic offence needs to be visited with a different approach. The economic offences adversely affect the economic and social fabric of the country. In such circumstances also, grant of anticipatory bail at this stage would frustrate the very purpose of qualitative investigation. 10. 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 hereby discharged.