Gujarat High Court
Aminbhai Adambhai Belim vs State Of Gujarat on 30 November, 2023
NEUTRAL CITATION
R/CR.MA/20936/2023 ORDER DATED: 30/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 20936
of 2023
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AMINBHAI ADAMBHAI BELIM
Versus
STATE OF GUJARAT
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Appearance:
MR LAXMANSINH M ZALA(5787) for the Applicant(s) No. 1,2
MR TIRTHRAJ PANDYA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 30/11/2023
ORAL ORDER
1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioners have prayed to release him on anticipatory bail in case of his arrest in connection with the Complaint Application No.38 of 2023 filed with Nalsarovar Police Station.
2. Brief facts of the case are that in connection with aforesaid complaint one Police Personnel namely Ranjitbhai is calling the petitioners to remain present in persons at Nalsorovar Police Station for the purpose of recording their statement and to settle their dispute with the complainant. On inquiring about copy of the complaint filed against the petitioners, the police personnel has denied to give the copy of the complaint and also refused to give the number of the complaint application. The police personnel Ranjitbhai is threatening the petitioners by stating Page 1 of 8 Downloaded on : Fri Dec 01 20:41:54 IST 2023 NEUTRAL CITATION R/CR.MA/20936/2023 ORDER DATED: 30/11/2023 undefined that the present complainant is neighbor of DYSP Shri Chauhan Saheb and is relative of the said DYSP. Thus, the petitioners have strong apprehension that if the petitioners will appear in person before the concerned police station for recording statement, an FIR will be registered against them and the petitioners will be arrested immediately on the spot. Hence, present petition.
3. Reiterating the facts stated herein above, learned advocate Mr. LM Zala would submit that constable namely Mr. Ranjit is repeatedly calling the petitioner for giving statement and therefore, the petitioner is apprehending that he will be enroped in any offence by the concerned police officer. He would further submit that to get the anticipatory bail, it is necessary that the FIR is to be registered and the offence is to be named therein. He would further submit that if the petitioner has reasonable apprehension that he will be arrested in any non-bailable and cognizable offence, it is sufficient for the petitioner to get the anticipatory bail.
4. Learned advocate Mr. Zala for the petitioner would further submit that the learned Sessions Court in Criminal Misc. Application No.482 of 2023 has committed serious mistake by denying the application on the ground that the inquiry is pending and yet no, FIR is registered as well as Court at Ahmedabad (Rural) has no territorial jurisdiction to decide the anticipatory bail application. He would further submit that basic object of section 438 of the Code is to protect the citizen of this country from unlawful and unnecessary harassment of Page 2 of 8 Downloaded on : Fri Dec 01 20:41:54 IST 2023 NEUTRAL CITATION R/CR.MA/20936/2023 ORDER DATED: 30/11/2023 undefined arrest and for the protection of the fundamental right of personal liberty, but in the present case, police constable Mr. Ranjit is calling the petitioner repeatedly from his mobile No.6354267527. Thus, the petitioner has reasonable apprehension that he will be arrested.
5. What further argued by learned advocate Mr. Zala that in an identical facts, the Coordinate Bench of this Court in case of Jitendrakumar Rao Vs. State of Gujarat rendered in Criminal Misc. Application No.3297 of 2015, granted 10 days time by directing the investigating officer to issue notice of 10 days before arresting the accused so as to enable the accused to take legal remedy. He further argued that in the present case also, necessary direction may be issued to the police for issuance of notice of 10 days or the days which like appropriate to this Court before arresting him to take appropriate legal remedy before appropriate forum. Para 8 of the judgment has been pressed into service, which reads as under:-
"8. It is now well settled that so far as grant of anticipatory bail is concerned, there need not be any registration of an FIR. Even without registration of an FIR, if a person is apprehending arrest, he can pray for anticipatory bail. Indisputably, there is no FIR registered as on today. So far as the applicant of Criminal Misc. Application No. 3297 of 2015, Mr. Rao, the Assistant RTO is concerned, he has appeared before the ACB thrice and two of his statements have been recorded. So far as the other applicant is concerned, he seems to be ailing and has been hospitalised and he is likely to undergo surgery tomorrow, as submitted by Mr. Oza, the learned Senior Counsel. I do not propose to go into the merit of the matter at this stage for the simple reason that there is no imminent threat of arrest looming large as on today. It is made clear by the Officer of the ACB, who is present in the Court, that they have yet to take a Page 3 of 8 Downloaded on : Fri Dec 01 20:41:54 IST 2023 NEUTRAL CITATION R/CR.MA/20936/2023 ORDER DATED: 30/11/2023 undefined decision whether to register the FIR or not. It is also made clear that they do not propose to arrest the applicants at this stage. It is possible that at the end of the inquiry they may close the matter. At the same time, it is possible that at the end of the inquiry, they may deem fit to register the FIR and proceed with the investigation in accordance with law. At this stage, I only propose to observe that there is no imminent threat of the applicants being arrested . I do not propose to pass any order of anticipatory bail. However, I make it clear that in future, ultimately if it is decided that the applicants are to be arrested, then they shall be informed about the same atleast ten days before, so that they may be able to take appropriate legal remedy before the appropriate forum, in accordance with law."
6. On the other hand, learned APP having referred to para 5 of the order passed by the learned Session Judge, would submit that present petitioner is repeatedly called by police constable Mr. Ranjit of Nalsarovar Police Station for inquiry, but he is not cooperating with the inquiry and in that circumstances, no decision has reached in the inquiry with regard to application given by the complainant at Nalsarovar Police Station. He would further submit that in these circumstances, since the petitioner is not cooperating with the investigation, he cannot be given blanket pre-arrest order. Thus, he submits to dismiss this petition.
7. Having heard learned advocates for both the sides, at the outset, let refer recent judgment of Vijaykumar Gopichand Ramchandani Vs. Amar Sadhuram Mulchandani reported in 2022 LiveLaw (SC) 1010, whereby, the Hon'ble Apex Court after referring judgment of Union of India v Padam Narain Aggarwal reported in (2008) 13 SCC 305, does not approve the practice Page 4 of 8 Downloaded on : Fri Dec 01 20:41:54 IST 2023 NEUTRAL CITATION R/CR.MA/20936/2023 ORDER DATED: 30/11/2023 undefined and procedure of giving prior notice to an accused in the event of State intends to arrest him. The relevant observations are made in para 1 to 3, which reads as under:-
"1 A Single Judge of the High Court of Judicature at Bombay, by an order dated 24 November 2021 in Anticipatory Bail Application No 2803 of 2021, directed that the first respondent should be given 72 hours' notice in the event that the State intends to arrest him on the registration of an FIR making out a cognizable offence. Consequently, the following order was passed:
"8..(i) In the event the respondent finds it necessary to arrest the applicant in connection with any complaint pertaining to cognizable offence at the behest of Mr. Rajesh Jadhawar, Joint Registrar (Audit) with respect to specific report, audit report and special report dated 6th August, 2021 submitted by him to the office of Commissioner of Co-operation and Registrar of Co-operative Societies, Pune, the applicant be given 72 hours advance notice."
2 The direction issued by the High Court to the effect that 72 hours' notice should be given to the first respondent in the event that the State finds it necessary to arrest him in connection with any complaint pertaining to a cognizable offence at the behest of the Joint Registrar (Audit) is manifestly incorrect in law. (See in this context, Union of India v Padam Narain Aggarwal & Others. Such a direction could not have been issued by the High Court. 3 The direction to the effect that 72 hours' advance notice should be given to the first respondent before effecting an arrest, in the event of a complaint being registered in respect of a cognizable offence, is accordingly vacated and set aside."
8. In view of the binding precedent, the later request of learned advocate Mr. Zala cannot be acceded to and the Court cannot issue any direction that in a particular time period, Page 5 of 8 Downloaded on : Fri Dec 01 20:41:54 IST 2023 NEUTRAL CITATION R/CR.MA/20936/2023 ORDER DATED: 30/11/2023 undefined notice should be issued to the petitioner in the event that State finds it necessary to arrest him in connection with any complaint pertaining to the non-bailable and cognizable offence.
9. Insofar as merits of the case are concerned, it appears that before the learned Sessions Court, the petitioner has not mentioned that for which offence, he is apprehending that he is going to be arrested by the concerned police. A blanket order of anticipatory bail cannot be granted. The petitioner has to satisfy for which offence, he is apprehending that he is going to be arrested by the concerned police. For that, the petitioner has to show that he has reason to believe that he may be arrested in non-bailable and cognizable offence.
10. Secondly, the learned Sessions Court has observed that the alleged incident is not taken place within the territorial jurisdiction of Court at Ahmedabad (Rural) at Viramgam and that was also the consideration for denying the Criminal Misc. Application. It is also to be observed that before this Court also, the petitioner has not stated that for which offence, he is apprehending that he is going to be arrested by the concerned police. But, the petitioner wanted blanket order that he should not be arrested for any of the offence. This kind of blanket and general order cannot be passed. The learned Sessions Court further noticed that in a written complaint given by the complainant, the inquiry is pending before concerned Police Station, whereupon, the petitioner did not remain present or appear for giving his statement. Thus, it appears that there is complete non-cooperation on the part of the petitioner. What Page 6 of 8 Downloaded on : Fri Dec 01 20:41:54 IST 2023 NEUTRAL CITATION R/CR.MA/20936/2023 ORDER DATED: 30/11/2023 undefined perceives from the aforesaid request that the petitioner is not entitled to any relief.
11. 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. 311-12, 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 Licenced to : Adv.Urvashi Purohit . Page 6 of 7 arrested in a nonbailable 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 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 Page 7 of 8 Downloaded on : Fri Dec 01 20:41:54 IST 2023 NEUTRAL CITATION R/CR.MA/20936/2023 ORDER DATED: 30/11/2023 undefined 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."
12. Resultantly, present petition fails and stands dismissed at admission stage. Notice discharged.
13. It is clarified that this Court has not examined the merits of the matter and the petitioner would be entitled to pursue any such remedy as are available under law, if he is aggrieved by any action taken against him.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 8 of 8 Downloaded on : Fri Dec 01 20:41:54 IST 2023