Abhishek Rajendrakumar Lungiwala vs State Of Gujarat

Gujarat High Court

Abhishek Rajendrakumar Lungiwala vs State Of Gujarat on 27 January, 2025

                                                                                                                NEUTRAL CITATION




                             R/CR.MA/1032/2025                                     ORDER DATED: 27/01/2025

                                                                                                                 undefined




                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 1032
                                                  of 2025

                       ==========================================================
                                            ABHISHEK RAJENDRAKUMAR LUNGIWALA
                                                           Versus
                                                     STATE OF GUJARAT
                       ==========================================================
                       Appearance:
                       MR RAXIT J DHOLAKIA(3709) for the Applicant(s) No. 1
                       MR KUNAL S SHAH(5282) for the Respondent(s) No. 1
                       MR ADITYA JADEJA, APP for the Respondent(s) No. 1
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                           Date : 27/01/2025
                                                            ORAL ORDER

1. RULE. Learned APP waives service of rule for the respondent-State.

2. 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 proposed offence which is going to be registered before the Athwalines Police Station pursuant to the application filed by respondent No.2- Dharmeshbhai Thakordas Zariwala.

3. Learned Advocate appearing on behalf of the applicant submits that initially, on 29.12.2023, Shri Dhani Rayon Pvt. Ltd., through its power of attorney holder, Vipul Vadher, filed an application before Athwalines Police Station against the petitioner (owner of Tulsi Corporation) and his son Page 1 of 6 Uploaded by ALI ISTAYAK(HC01093) on Wed Jan 29 2025 Downloaded on : Wed Jan 29 23:02:37 IST 2025 NEUTRAL CITATION R/CR.MA/1032/2025 ORDER DATED: 27/01/2025 undefined (administrator of Tulsi Corporation), registered as Application No. 06 of 2024. The PSI, Sagrampura Police Chokey, investigated the application, during which the petitioner and his son cooperated, and their statements were recorded on 23.01.2024. The investigation concluded with a police report filed on 27.01.2024. The applicant later obtained a copy of the application via RTI on 01.02.2024. After the closure of the first application, another application with the same allegations, filed by Dharmesh Jariwala on 10.08.2024 (Application No. 35 of 2024), was investigated by the same police station. Again, the applicant and his son fully cooperated, with their statements recorded on 23.08.2024. Surprisingly, on 14.11.2024, the applicant received a call from Athwalines Police Station and was summoned again. On 17.11.2024, the petitioner and his son appeared, and their statements were recorded for the third time regarding Application No. 77 of 2024, without receiving any formal notice. Being aggrieved and dissatisfied, the applicant has filed the present application under Section 482 of the BNSS seeking anticipatory bail. It is further submitted that, considering the nature of the offence, the applicant may be granted bail with the imposition of suitable conditions.

4. Learned APP appearing on behalf of the respondent-State, and Mr. K.S. Shah, the learned advocate for respondent No. 2 (complainant), have opposed the grant of regular bail, citing the nature and gravity of the offence. It was submitted that the applicant is allegedly involved in the offence, which is yet to be registered, and the application for its approval is pending with the police authority and custodial interrogation of the applicant Page 2 of 6 Uploaded by ALI ISTAYAK(HC01093) on Wed Jan 29 2025 Downloaded on : Wed Jan 29 23:02:37 IST 2025 NEUTRAL CITATION R/CR.MA/1032/2025 ORDER DATED: 27/01/2025 undefined is required. The learned advocate for the complainant further submitted that since no offence has been registered, he draws the attention of this Court to the judgment passed by the Hon'ble Apex Court in Vijaykumar Gopichand Ramchandani v. Amar Sadhuram Mulchandani, reported in 2022 LiveLaw (SC) 1010, arguing that no blanket protection or such directions should be issued in cases where an FIR has not been registered, deeming the application premature. He, therefore, requested the dismissal of the present application.

5. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects.

6. It is worth to mention that no offence has been registered, Page 3 of 6 Uploaded by ALI ISTAYAK(HC01093) on Wed Jan 29 2025 Downloaded on : Wed Jan 29 23:02:37 IST 2025 NEUTRAL CITATION R/CR.MA/1032/2025 ORDER DATED: 27/01/2025 undefined and there is no bar or no not a sine qua non for the registration of an FIR to exercise jurisdiction under Section 482 of the BNSS for granting anticipatory bail. In this regard, reference may be made to the case of Sushila Aggarwal v. State (NCT of Delhi) , reported in (2020) 5 SCC 1.

7. Considering the peculiar facts and circumstances of the case, LA Application No. 7 of 2024 was preferred before the same authority, which concluded that no offence was made out and that the transaction was of a civil nature. Subsequently, another application was filed, and the investigation is ongoing, during which the applicant was called for questioning. Due to apprehension of arrest, the applicant approached the learned Sessions Court and in the Court the Investigating Officer, Mr. J.B. Patel, PSI, Athwalines Police Station, appeared and submitted that the applicant had purchased yarn worth ₹51,62,239/- but failed to make payment, thereby committing a51,62,239/- but failed to make payment, thereby committing a breach of criminal trust and cheating, and during the investigation, prima facie involvement of the applicant was found.

8. In view of the above, there is no need to register a complaint as the Investigating Officer intends to register the offence and arrest the applicant, resulting in genuine apprehension on the part of the applicant. Therefore, considering the frivolity of the application, this is a fit case to exercise jurisdiction under Section 482 of the BNSS.

NEUTRAL CITATION R/CR.MA/1032/2025 ORDER DATED: 27/01/2025 undefined

9. Considering the aforesaid aspects and the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1, I am inclined to allow the present application.

10. In the result, the present application is allowed by directing that in the event of arrest / appearance of the applicant in connection with the proposed offence which is going to be registered before the Athwalines Police Station pursuant to the application filed by respondent No.2- Dharmeshbhai Thakordas Zariwala the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that applicant :

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 05/02/2025 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the applicant;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

NEUTRAL CITATION R/CR.MA/1032/2025 ORDER DATED: 27/01/2025 undefined

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the Court and if having passport shall deposit the same before the Trial Court within a week;

(g) an order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigative agency, to investigate into the charges against the applicant;

(h) It is open to the police or the investigating agency to move the learned trial Court for a direction under Section 483(2) to arrest the accused, in the event of violation of any term, such as absconding, non- cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.-

11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail.

12. Rule is made absolute to the aforesaid extent. Application is disposed of accordingly. Direct service is permitted.

(HASMUKH D. SUTHAR,J) ALI Page 6 of 6 Uploaded by ALI ISTAYAK(HC01093) on Wed Jan 29 2025 Downloaded on : Wed Jan 29 23:02:37 IST 2025