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Gujarat High Court · body

2025 DIGILAW 61 (GUJ)

Vipulkumar Vinubhai Kesariya v. State of Gujarat

2025-02-04

HASMUKH D.SUTHAR

body2025
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. C.R. No.11215001240664 of 2024 registered with Anand Rural Police Station, District Anand for the offence punishable under Section 316(5) of the Bharatiya Nyaya Sanhita, 2023 (for short “BNS”). [3.0] Learned advocate for the applicant has submitted that the applicant herein has nothing to do with the offence and has been falsely implicated in the present case. Further, the complaint is filed belatedly. It is submitted that the applicant is working as Peon in the Bank of Baroda, Chikhodra Branch as per the allegations leveled in the complaint, the complainant is having locker No.036 with the Bank of Baroda, Chikhodra Branch in the joint name with his wife and he used to keep valuable jewelry and cash in the said locker. As per the banking practice, the Manager has to mange the lockers. To come out from the allegations of theft of cash and 80 gram of gold from the locker of the complainant at different times, allegation is foisted against the present applicant though no material is collected during the investigation which points the involvement of the present applicant. Presence of applicant is natural as applicant is also having the locker in the same branch and he has also operated the locker at four different times in January, October and November, 2024 and during the period from 07.02.2024 to September, 2024, applicant has enjoyed three casual leaves. Further, there was mismanagement and negligence on the part of the Manager and other officials of the Bank to for which they have shifted the blame on the present applicant and has made him the scapegoat. Further, nothing is required to be recovered or discovered from the present applicant and he is not indulged in the alleged offence. The complaint is filed belatedly merely on the basis of suspicion and vague allegations are leveled against the present applicant, who is absolutely innocent. Further, the applicant is employee of Bank and therefore, there is no risk of absconding. The complaint is filed belatedly merely on the basis of suspicion and vague allegations are leveled against the present applicant, who is absolutely innocent. Further, the applicant is employee of Bank and therefore, there is no risk of absconding. Learned advocate for the applicant submits that the 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 applicant is working as Peon in the Bank of Baroda, Chikhodra Branch. The locker holder – complainant had given an application qua missing of his ornaments and cash from his locker and said fact was reported to the police pursuant to which police conducted the preliminary investigation and during the said investigation, statement of applicant came to be recorded wherein he has admitted that he used to operate the lockers of customers as Manager was on leave and as she was having a gynec problem, she used to take help of the applicant and taking undue advantage of the said fact, applicant has managed to prepare the duplicate key of locker and has used the locker. So far as delay in filing of the FIR is concerned, if any customer opens a locker and come to know about missing of any ornaments from the locker then he will raise the voice but unless and until a person does not operate the locker he will never come to know about any defalcation or any embezzlement or theft. Herein, present applicant used his locker No.040 which is nearby to the locker No.036 of the complainant and he proceeded on leave after receiving the information of lodging of the complaint and he has not joined the investigation. [5.0] Nonetheless, applicant has indulged in unethical practice also. He has tried to pawn ornaments of the customers on lesser rate and even during eight months he has sold out the ornaments, without any bills or proof, to three goldsmiths whose statements have been recorded. [5.0] Nonetheless, applicant has indulged in unethical practice also. He has tried to pawn ornaments of the customers on lesser rate and even during eight months he has sold out the ornaments, without any bills or proof, to three goldsmiths whose statements have been recorded. Nonetheless, cousin of applicant is also sersving in the Bank of Baroda, Ellisbridge Branch wherein also by adopting the similar modus and in same pattern and fashion, ornaments from lockers being stolen and in this regard also, offences are registered. So far as allegation of involvement of other accused and CCTV footage are concerned, applicant is aware of the fact that after three months, CCTV footage are not available and automatically deleted. The applicant is taking undue advantage of his knowledge and has tried to shift his blame on the Manager but prosecution is going to invetigate the offence fairly and if any involvement of Manager or any other staff member of Bank if found during the investigation then appropriate proceeding shall be initiated against the concerned also but the applicant having no any locus to dictate the Investigating Officer as to in which manner and method investigation should be conducted. Further, applicant is avoiding investigation and he has switched off his mobile phone and is out of reach. 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. [6.0] 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. Therefore, he has requested to dismiss the present application. [6.0] 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. [7.0] Having heard the learned advocates for the respective parties and having gone through the evidence produced on record, it appears that the complaint is filed for the offence under Section 316(5) of the BNS with Anand Rural Police Station by complainant – locker holder one Mr. Subhashbhai Kantibhai Patel having Locker No.036 in the joint name with his wife with Bank of Baroda, Chikhodra Branch wherein gold ornaments and cash of Rs.10.50 lakh was kept. When the complainant alongwith his son went to operate the locker on 07.02.2024, he made entry in the register and at that time, present applicant – Peon came with him with masterkey of the locker and locker was opened. On 18.09.2024 also, the applicant – accused came with the masterkey and locker was opened. On that day, ornaments and cash from the locker of the complainant were not found in the locker and were missing. On 18.09.2024 also, the applicant – accused came with the masterkey and locker was opened. On that day, ornaments and cash from the locker of the complainant were not found in the locker and were missing. Thereafter, the complainant approached the Branch Manager and Branch Manager had informed about the mechanishm that for operating the locker, two keys are required but as the complainant was not satisfied, on 21.09.2024, he approached the police and filed the complaint and during preliminary inquiry, involvement of present applicant was found and complaint was registered after the preliminary inquiry wherein allegations are leveled against the present applicant that by using the masterkey the applicant has operated the locker No.036 and in this regard complaint is filed for the offence under Section 316(5) of the BNS which is punishable with imprisonment upto 10 years. [7.1] The present applicant is working as Peon in the said bank. During the investigation it has come out that though Manager has to operate the bank lockers, as the Bank Manager Varshaben Natvarlal Maheriya was sick and having gynec problem, she was unable to climb the stairs and therefore, she used to take help of the present applicant to operate the lockers. When she proceeded on leave, at that time also, present applicant was aware of the location of masterkey of lockers and thus, due to negligence on the part of the Manager, present applicant was using the lockers and he has taken undue advantage of as revealed from the investigation. During the period between 21.02.2024 to 22.03.2024, she was on leave and doctor had advised her not to climb stairs for three to four months and therefore, as and when customers come to operate the lockers, she used to handover the masterkey to the applicant – accused and applicant – accused was operating the bank lockers. The said factum is also corroborated from the statement of the complainant. Hence, argument canvassed by the learned advocate for the applicant that applicant was having no authority to operate the lockers and only Manager is responsible is not acceptable in the peculiar facts of the case on hand. The said factum is also corroborated from the statement of the complainant. Hence, argument canvassed by the learned advocate for the applicant that applicant was having no authority to operate the lockers and only Manager is responsible is not acceptable in the peculiar facts of the case on hand. [7.2] Another important facet of the matter is that during the invetigation, statements of Hiren Parshottam Soni and Mitesh Sanjaybhai Soni were recorded and they have stated that present applicant alongwith his wife alos used to sell the gold ornaments number of times and received the cash without providing any bill or any proof of ownership of the said ornaments. Considering the modus operandi of the applicant as well as the fact that other customers have also approached the police after registration of the present complaint alleging that they have also lost their valuables from the lockers and in this regard complaint is also received by the bank and one witness namely Ilaben Kanubhai has also stated that present applicant used to give loan to customers against ornaments. Considering the aforesaid fact and modus operandi adopted by the present applicant, custodial interrogation of the applicant is required. Herein, the alleged offence is committed in the bank and “ banking practice is synonym of trust ” and in the banking practice, customer repose trust which is most important factor. The allegation against the applicant is that he used duplicate key and operated the locker and stolen ornaments and cash and thereafter he has sold out the said ornaments and received the money and monetary gain. Hence, as the allegations in the present case are like the econimic offence and material collected during the investigation suggests that the present applicant has siphoned off the cash, in order to investigate as to where he has invested the money is also required to be investigated and these offences are in the nature of economic offence which is a class apart and is required to be visited differently. Considering the peculiar facts of the case on hand and evidence collected during the investigation against the present applicant, I have no hesitation to say that prima facie it appears that this is not a case wherein the applicant is falsely enroped and allegations leveled with a view to tarnish the image of the applicant. Considering the attending circumstances, this is not a case to exercise the jurisdiction. Considering the attending circumstances, this is not a case to exercise the jurisdiction. [8.0] 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 of 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 to relevant information. [9.0] 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, therefore, keeping in mind the law laid down by the Honourable Supreme Court in the case of (i) State Rep. by the CBI Vs. Anil Sharma, 1997 (7) SCC 187 , (ii) Adri Dharan Das Vs. State of West Bengal, 2005 (4) SCC 303 and (iii) P. Chidambaram Vs. Directorate of Enforcement, 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. 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 convinced that exceptional circumstances exist to resort to that extraordinary remedy". 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 sufÏcient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation" [9.1] Further, in the case of Pratibha Manchanda vs. The State of Haryana , AIR 2023 SC 3307 , wherein the Hon’ble Apex Court has held in Para 19 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, italso 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.” [9.2] Further, keeping in mind Law laid down by the Hon’ble Supreme Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, (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 humiliating or tarnish the image of the present applicant. Even in Jai Prakash Singh Vs. State of Bihar and another, (2012) 4 SCC 379 , Honourable Supreme Court 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. Even in Jai Prakash Singh Vs. State of Bihar and another, (2012) 4 SCC 379 , Honourable Supreme Court 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." [10.0] 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 Gujarat vs. Mohanlal Jitamalji Porwal, (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 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 from the banking system also. [10.1] This Court is of the considered view that if the present accused is equipped with protective order, it would obviously adversely affect the case of the prosecution and the qualitative investigation as applicant is having trained legal mind and he will tamper with evidence and witnesses of prosecution. [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 discharged. [12.1] 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.