Gujarat High Court
Rupal Narendrabhai Shah vs State Of Gujarat on 13 January, 2025
NEUTRAL CITATION
R/CR.MA/716/2025 ORDER DATED: 13/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 716
of 2025
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RUPAL NARENDRABHAI SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR KISHAN R CHAKWAWALA(9846) for the Applicant(s) No. 1
MR VIRAJ HARGOVIND DESAI(14245) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 13/01/2025
ORAL ORDER
[1.0] RULE. Learned APP waives service of notice of Rule for the respondent - State of Gujarat.
[2.0] By way of the present application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "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. No.11216025240489 of 2024 registered with Santej Police Station, District Gandhinagar for the offences punishable under Sections 336(2), 338, 339, 340(2), 316(2), 316(5), 318(2), 318(4), 319, 61(2) and 112 of the Bharatiya Nyaya Sanhita, 2023 (for short "BNS").
[3.0] The brief facts of the case are that the accused Nos.1, 2 and 3 made an application namely "Market Pulse" and from the said application, accused persons used to record the performance of Page 1 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025 NEUTRAL CITATION R/CR.MA/716/2025 ORDER DATED: 13/01/2025 undefined stocks for the companies listed at BSE and NSE and used to contact people and posing as stock brokers, lured the customers to deposit and invest their money in various bank accounts. It is further the case that the accused persons have misrepresented public by portraying themselves as stock brokers and duped and cheated the public of their money and have fraudulently misappropriated money into various accounts that are not even connected to the offence. It is in this regard, the FIR is filed.
[4.0] Learned advocate for the applicant submits that the applicant herein has nothing to do with the offence and has been falsely implicated in the present case. Further, the applicant is a lady and is not connected in any manner with the alleged offence and whatever transaction done is by her brother in law (Jeth). Further, the applicant is having two minor children and she also has to take care of her husband who is paralytic. It is submitted that, in the FIR, 27 accused persons are mentioned however, present applicant is not named in the FIR. Further, the case is based on documentary evidence. Further, present case involves a maximum punishment of seven years and the offence is triable by the Court of learned Magistrate. 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.
[5.0] The learned APP appearing for the respondent-State has opposed the application and submitted that the applicant is directly Page 2 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025 NEUTRAL CITATION R/CR.MA/716/2025 ORDER DATED: 13/01/2025 undefined involved in the offence. The applicant in collusion of co-accused have targetted the innocent citizens and by luring them to earn huge profit have made them to invest in stock market for which bank account is opened in the name of present applicant with Kotak Mahindra Bank wherein financial transactions to the tune of Rs.81,96,478/- have taken place during the period from 01.08.2024 to 17.10.2024 and therefore, custodial interrogation to unearth the offence which involves scam of 192.50 Crore is required. Present is a serious economic offence. In view of the aforesaid fact, it has become evident that the present applicant played an active role in 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. 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 Page 3 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025 NEUTRAL CITATION R/CR.MA/716/2025 ORDER DATED: 13/01/2025 undefined required to be considered.
[7.0] Having heard the learned advocates for the respective parties and perusing the record, it appears that the complaint is filed by the Police Sub Inspector Mr. M.S. Rana in September, 2024 wherein many victims fall prey to the stock market schemes which guaranteed unrealistically high gain and profit. There is involvement of as many as 27 accused persons wherein it is alleged that accused Nos.1 to 3 had started an App namely "Market Pulse"
to make investment through BSE and NSE and inform about the fluctuations in the rates of stock market and lured people to make investment and for that, by opening different dummy accounts with various banks with intention to lure and cheat people, as a part of conspiracy, in abetment of each other, accused Nos.1 to 3 have facilitated accused Nos.4 to 27 by providing them with mobile phone and contact details and dummy cards to lure the people from different areas of State and country by forging the electronic records also and thereby received amounts from people and while doing so, accused Nos.4 to 27 were caught red handed by the police. That, 22 accused persons including one juvenile are yet to be arrested. During the investigation it is revealed that in total 41 dummy accounts without any KYC have been opened and fraudulent transactions involving total amount of Rs.192,50,43,652/- have been done by the accused amongst which money trail of Rs.81,96,478/- has been found from the account of the present applicant held with Kotak Mahindra Bank and said amount is withdrawn by the present applicant in cash and transferred to another account through cheque and RTGS. The amount is deposited in the account No.2445680625 of the present Page 4 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025 NEUTRAL CITATION R/CR.MA/716/2025 ORDER DATED: 13/01/2025 undefined applicant held with Kotak Mahindra Bank wherein amounts have been received in the said account through accounts of other co- accused.
[7.1] Even, other complaints are also filed against the present applicant at Surat, Gujarat and in different States qua commision of fraud and cheating. Against the accused, in total 41 bank accounts are used and from other States also, 55 online complaints of cyber crime portal have been received and online fraud being committed and large scale conspiracy to siphon huge amount being done. Prima facie involvement of the present applicant is there in commission of the offence wherein in connivance and in collusion with co-accused, documents have been forged and same are used and amount is being transferred in dummy accounts. Considering the aforesaid fact, the present applicant-accused has received amounts in her bank account from co-accused (i) Gunvant Patel, (ii) Kiranji Punjaji Thakor, (iii) Rajeshkumar Chaudhary and (iv) Mauliksinh Chavda and therefore, prima facie connection of the present applicant with the co-accused and involvement of the present applicant in the offence is found. Present is not a case wherein dummy accounts of the applicant is used out of her knowledge. The applicant was very much in knowledge of the fact that her account was being used as she has withdrawn the amount in cash and even transferred amounts through RTGS to other accounts of the co-accused and therefore, she has actively participated in the offence and even the co-accused are on run and therefore, if the applicant is protected with pre-arrest bail then the possibility of tampering with evidence cannot be ruled out as the offence is an online offence.
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[7.2] Further, perusing the investigation papers it reveals that the applicant has withdrawn the amount by putting her signature in the self cheques and diverted the said amount in different accounts and to find out further money trial, custodial interrogation of the applicant is required. Therefore, if bail is granted, then it may adversely affect the case of prosecution as investigation is at preliminary stage. This Court has also considered the interest of the prosecution and the applicant's personal liberty, it cannot override the larger public interest and accused facing charge of criminal breach of trust. Prior to giving weightage to personal liberty, the Court has to strike balance between personal liberty and a larger interest of society.
[8.0] The accused had contributed cyber criminals who have cheated and defrauded innocent people and duped their hard earned money and thereby accused persons have extorted huge amount of approximately 192.50 Crore and therefore, a detailed interrogation of her bank account transactions is needed. The applicant is accused of a large-scale fraud, and custodial interrogation is necessary. The government has opposed granting anticipatory bail, stating it could delay the investigation, tamper with electronics evidence, or influence witnesses. Releasing the applicant would prevent the investigating agency from properly questioning her while in custody.
[8.1] In aforesaid backdrop, custodial interrogation is necessary. When serious offences are disclosed and involvement of an accused is 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 Page 6 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025 NEUTRAL CITATION R/CR.MA/716/2025 ORDER DATED: 13/01/2025 undefined considerations. The alleged offence is in nature of white collar and socioeconomic offence, this Court is conscious with the safeguards provided under Section 528 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 public welfare is involved at 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 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 in the more information, and find out the involvements 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 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 Page 7 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025 NEUTRAL CITATION R/CR.MA/716/2025 ORDER DATED: 13/01/2025 undefined 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 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 Page 8 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025 NEUTRAL CITATION R/CR.MA/716/2025 ORDER DATED: 13/01/2025 undefined 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"
[9.1] Further, in the case of Pratibha Manchanda vs The State of Haryana, reported in 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 V/s State of Maharashtra and Others reported in (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 Page 9 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025 NEUTRAL CITATION R/CR.MA/716/2025 ORDER DATED: 13/01/2025 undefined been made with view to humiliating or tarnish the image of the present applicant. Even in Jai Prakash Singh V/s State of Bihar and another, reported in (2012) 4 SCC 379, Hon'ble Supreme Court has been pleased to hold:
"Parameters for grant of anticipatory bail in a serious offenceare required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatorybail 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."
[9.3] 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 involvement of amount Rs.192.50 Crore and money trail of said amount is yet to be traced out and amount has been siphoned in the various accounts and so far as it is an economic offence and there is involvement of money and therefore, 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 Gujrat vs. Mohanlal Jitamalji Porwal, reported in (1987) 2 SCC 364, the Hon'ble Supreme Court in para 5 has observed thus:
"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 Page 10 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025 NEUTRAL CITATION R/CR.MA/716/2025 ORDER DATED: 13/01/2025 undefined 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."
[10.0] 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 and here two accused are still out of reach, who are directly connected with the present accused and other co-accused.
[11.0] As discussed above in earlier part of the order, State is able to show and investigation papers also indicate more than prima facie case for custodial interrogation of the present applicant
- accused. 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 and trace out further money trail and recovery of said amount of fraud.
[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, Page 11 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025 NEUTRAL CITATION R/CR.MA/716/2025 ORDER DATED: 13/01/2025 undefined the application for anticipatory bail is dismissed. Rule is hereby 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 petitioner on its own merits without being influenced by the observations made in the present order.
(HASMUKH D. SUTHAR, J.) Ajay Page 12 of 12 Uploaded by MR. AJAY C MENON(HC00939) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:40:23 IST 2025