NEUTRAL CITATION
R/CR.MA/17885/2023 ORDER DATED: 06/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO.
17885 of 2023
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RATNAJI JIVAJI THAKORE
Versus
STATE OF GUJARAT
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Appearance:
MR NIKHIL S VYAS(5663) for the Applicant(s) No. 1
MS SHRUTI PATHAK, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 06/10/2023
ORAL ORDER
[1.0] RULE. Learned APP waives service of Rule for and on behalf of the respondent-State.
[2.0] By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-original accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being CR No.11209003230491 of 2023 dated 09.08.2023 registered with Kheroj Police Station, District Sabarkantha for the offences under Sections 65(a), 65(e), 81 and 83 of the Gujarat Prohibition Act and sections 465 and 471 of the Indian Penal Code, 1860.
[3.0] Learned advocate for the applicant submits that the applicant has been falsely roped in the offence and nothing is recovered from the present applicant accused. There is no mention in the FIR as to from where the intelligence was received Page 1 of 9 Downloaded on : Sat Oct 07 20:43:09 IST 2023 NEUTRAL CITATION R/CR.MA/17885/2023 ORDER DATED: 06/10/2023 undefined and before conducting the raid, panchnama is not drawn in the police station. Further, the applicant has two past antecedents but has been acquitted in both the cases. He further submitted that merely based on the statement of the co-accused, the applicant has been implicated in the offence. Co-accused are also granted bail by the learned Sessions Court concerned. He further submitted 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] Per contra, learned APP has vehemently opposed the application and submitted that the present applicant is involved in the offence. The applicant is having past criminal antecedents and remained absconder for longer time and not cooperated in the investigation. The accused had ordered English Liquor worth Rs.1,33,008/- from the co-accused for Rajasthan and during the investigation it is also found that by forging the number plate of vehicle Swift Car, accused have tried to mislead the police. Further, accused Nos.1 to 4 were caught red-handed with the muddamal and they were going to hand over the said muddamal to present applicant and thus it is clear that the present applicant had ordered muddamal and considering his past history, as the investigation is at preliminary stage, she has requested to dismiss the present application.
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[5.0] This Court has considered the rival submissions made by learned advocate for both the sides and considered the material placed on record.
[6.0] Prima facie, going through the record it appears that the offence is registered with Kheroj Police Station wherein the name of the present applicant is mentioned in the FIR as accused No.5. The LCB Inspector, Himatnagar received the intelligence that accused persons from Rajasthan were going in Indica car with English Liquor to supply the same to accused No.5 (present applicant) and having intercepted the vehicle Swift Dezire bearing No.GJ-09-BE-0798 and Tata Indica Car No.GJ-01-KA-3271, muddamal liquor was found at the behest of accused Nos.1, 2 and 4 and were caught red handed and the offence came to be registered. During the course of investigation, further it was found that the original number of Swift Dezire Car was RJ-27-CD- 1676 but the said number plate was forged as GJ-09-BE-0798, which belongs to District Sabarkantha, Gujarat and therefore, sections 465 and 471 of the IPC came to be added by the learned Magistrate and thus, the accused persons are facing charges under Sections 465 and 471 also. Going through the investigation papers, prima facie, it appears that the allegation against the present applicant is that he ordered such prohibited muddamal as Gujarat is a dry State and law of prohibition does exist. Though the applicant is involved in such illegal activity, he remained absconding and not cooperated or joined the investigation.
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[6.1] So far as the submission on behalf of the applicant that only on the basis of statement of co-accused, present applicant is implicated in the present offence is concerned, it is needless to say that at the time of investigation, statement of co-accused provides clues to the investigating agency as to how to investigate the case and thereafter the Investigating Officer has to collect evidence against the person who has been named as accused. In light of the above provisions, there is no bar on considering the statement of co-accused for investigation purposes. At this stage, it is relevant to note that this Court has observed in the case of Mohmed Salim Abdul Rashid Shaikh vs. State of Gujarat reported in 2001(2) GLR 1580, in para 12, as under:
"...It is pertinent to note that the prosecution case rests mainly on circumstantial evidence and police has received a clue against the present applicant from the statement of co-accused, already arrested. Irrespective of the fact that statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation..."
[6.2] Further, in the case of Mohammed Fasrin vs. State Rep. By the Intelligence Officer rendered in Criminal Misc. Application No.296 of 2014, the Hon'ble Supreme Court observed as under:
".......The confessions of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co-accused....."
In view of the above, during the investigation, statement of Page 4 of 9 Downloaded on : Sat Oct 07 20:43:09 IST 2023 NEUTRAL CITATION R/CR.MA/17885/2023 ORDER DATED: 06/10/2023 undefined co-accused provides a clue for investigation and to unearth the truth, statement of co-accused is required. Even considering the fact that as the applicant is involved such illegal activities in past also, though he has been given the benefit of doubt due to lack of evidence in two criminal cases lodged against the applicant, he has not been honorably acquitted. Even thereafter, the present applicant has involved himself in the present offence again.
[6.3] The coordinate Bench of this Court in the case of Jigneshkumar Maheshbhai Patel vs. State of Gujarat (Criminal Misc. Application No.3122 of 2018) has observed as under :
"15. This Court, in one of its judgments, in the case of State of Gujarat vs. Desai Jigisbhai @ Rajubhai Nagjibhai, Criminal Misc. Application No.23576 of 2015, decided on 4th February, 2016, observed as under;
"25. When a Court is given a discretion, the statute confers upon it the power to act according to what may appear to be best and appropriate under the circumstances of the particular case. The discretion is not willful or arbitrary, but is regulated by well-known and well established principles. In many circumstances, the Judge has a discretion as to whether, and in what manner, to exercise his powers. Commonly encountered instances of judicial discretion are the discretion as to grant of bail in a non-bailable offence. However, no discretion is absolute and there may be a successful appeal to the Court of Appeal in relation to the exercise of a judicial discretion if the appellant can show that the judge exercised his discretion under a mistake of law, or under a misapprehension as to the facts, or that he took into account irrelevant matters or gave insufficient weight, or too much weight, to certain factors or that he failed to exercise his discretion at all.
26.In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows :
"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under (SCC p. 124, para 16) :
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"If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."
16. The presumption of innocence, by itself, cannot be the sole consideration for grant of bail. The presumption of innocence is one of the considerations, which the court should keep in mind while considering the plea for bail. The salutary rule is to balance the cause of the criminal defendant and the cause of public justice. Over solicitous homage to the criminal defendant's liberty can, sometimes, defeat the cause of public justice. Over a period of time, a feeling seems to exist in some quarters that the object of criminal law is to protect the rights of the accused and that the criminal justicing system is envisioned as a sentinel of the rights of the accused. It is not so. The law is the sentinel of rights of the society and of the individual. The rights of the criminal defendant will be as zealously guarded, as the cause of public justice. Pre-trial detention in itself is not an evil, nor opposed to the basic presumption of innocence. If liberty is to be denied to an accused to ensure maintenance of law and order and public health, then the courts should not hesitate in denying such liberty. Ensuring security and order including public health is a permissible non-punitive objective, which can be achieved by pre-trial detention. Where overwhelming considerations in the nature aforesaid require denial of bail, it has to be denied."
[6.4] Now coming back to the facts of the present case and looking to the material placed on record, it clearly transpires that the applicant has criminal antecedent and remained absconder. Even otherwise, considering the facts and role of the applicant, no case is made out to extend the benefit of parity also and hence, question of parity does not arise. The applicant is also involved in similar type of offence earlier and in the instant case, role of the applicant is attributed as a receiver of the liquor and it was very much within the knowledge of the applicant that Gujarat being a dry state, prohibition is there, however, he Page 6 of 9 Downloaded on : Sat Oct 07 20:43:09 IST 2023 NEUTRAL CITATION R/CR.MA/17885/2023 ORDER DATED: 06/10/2023 undefined ordered the contraband.
[7.0] In this background, this Court prima facie is of considered view that, there is a reasonable ground to believe that the applicant has committed the alleged offence. Considering the facts of the present case, it cannot be said that the applicant herein has been falsely implicated in the alleged offence. If the anticipatory bail as sought for is granted, then it will affect the investigation of the case. Therefore, custodial interrogation of the applicant is required.
[7.1] The Hon'ble Apex Court in the case of Jai Prakash Singh vs. State of Bihar & Anr. reported in (2012) 4 SCC 379 has been pleased to hold as under:-
"Parameters for grant of anticipatory bail in a serious offences 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."
[7.2] It is appropriate to refer to the judgment of the Hon'ble Apex Court rendered in the case of Pratibha Manchanda vs. State of Haryana reported in AIR 2023 SC 3307, wherein the Hon'ble Apex Court has observed thus:-
"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 Page 7 of 9 Downloaded on : Sat Oct 07 20:43:09 IST 2023 NEUTRAL CITATION R/CR.MA/17885/2023 ORDER DATED: 06/10/2023 undefined 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."
[7.3] Insofar as the submission on behalf of the applicant that in the present case, muddamal is recovered and therefore, no custodial interrogation is required is concerned, it is worthy to mention that herein, prima facie case is made out against the present applicant and there are serious allegations against the applicant that he was to receive the liquor from the accused persons and hew as in active contact with other accused and he has actively participated in the offence. Thus, in order to reach to a logical conclusion of the investigation, the Investigating Officer deserves a free hand. There is no rule that if custodial interrogation is not required then anticipatory bail is required to be granted. The custodial interrogation is one of the good grounds to reject the anticipatory bail application but merely because custodial interrogation is not required, itself is not a ground to allow the anticipatory bail application. In this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Sumitha Pradeep vs. Arun Kumar C.K. reported in 2022 SCC OnLine (SC) 1529, wherein it is observed and held as follows:
"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 Page 8 of 9 Downloaded on : Sat Oct 07 20:43:09 IST 2023 NEUTRAL CITATION R/CR.MA/17885/2023 ORDER DATED: 06/10/2023 undefined 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."
In view of the above decision and in view of the facts and circumstances of this case, custodial interrogation of not only the applicant, but all other suspect/s is therefore imperative to unearth the truth. Hence, this is a not a fit case to exercise the jurisdiction in favour of the applicant.
[8.0] For the foregoing reasons and considering the law laid down in the above cited decisions of this Court as well as the Hon'ble Apex Court, this Court is of view that it is not a fit case to exercise the discretion under Section 438 of the CrPC in favour of the present applicant. Accordingly, present application does not deserve any consideration and is hereby dismissed. Rule is discharged.
(HASMUKH D. SUTHAR, J.) Ajay Page 9 of 9 Downloaded on : Sat Oct 07 20:43:09 IST 2023