Gujarat High Court
Gaurav Savjibhai Kakadiya vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/12275/2025 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 12275 of 2025
(FOR ANTICIPATORY BAIL)
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GAURAV SAVJIBHAI KAKADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR SHRIRAM K BHARGAW(9436) for the Applicant(s) No. 1
MR HARDIK SONI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 03/07/2025
ORAL ORDER
1. By filing instant applications under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the applicants have prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No. 11214042241063/2024 registered with Olpad Police Station, Surat for the alleged offences as mentioned in the FIR.
2. The crux of the FIR is as under, The accused persons, in connivance with each other and with an intent to achieve their oblique motive, had given attractive offers to the innocent and gullible persons and thereby opened their bank accounts in different banks and also obtained their Aadhar Card, PAN Card, Election Card etc. to obtain bogus sim-card with the help of those documents and, thereafter, the accused have obtained kits from the bank concerned and with the help of it, they have Page 1 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined entered into various transactions in crores of rupees and thereby the accused have committed alleged offences.
3. Heard learned advocate, Mr. Shriram Bhargaw for the applicants and learned APP Mr. Hardik Soni for the respondent - State of Gujarat.
4. Learned advocate, Mr. Bhargaw for the applicant has referred to the allegations leveled in the FIR and submitted that on the strength of the secret information received by the members of the raiding party with regard to commission of the accused by the accused persons, a raid was carried out and during the course of search and seizure, six persons have been caught red handed along with certain material and during the course of interrogation of those arrested accused persons, the name of the applicant and other accused persons have come on surface, therefore, the aforesaid FIR has been lodged. He submitted that in fact, the applicant is stationed at Dubai and he has nothing to do with the alleged commission of crime, however, the applicant is arraigned as accused on the basis of the statement of the co-accused and thus, he was not at all available at the place of occurrence. He submitted that in view of the recent decision of the Hon'ble Supreme Court, the statement of the co- accused cannot be relied upon and here in the present case on hand, the involvement of the applicant is solely on the basis of the statement of the co-accused. He further submitted that in fact, in the present case, all the materials have already been collected by the concerned Investigating Page 2 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined Officer from the arrested accused persons and nothing is required to be recovered from the applicant and entire case of the prosecution is based upon documentary evidence, which have already been collected by the concerned IO as stated above, therefore, custodial interrogation of the applicant is not required. He submitted that the applicant will keep himself available during the course of investigation, trial also and will not flee from justice. He on instructions submitted that he is also ready and willing to abide by all the conditions including imposition of conditions while releasing them on anticipatory bail. It is, therefore urged that considering the above facts, the applicants may be granted anticipatory bail.
5. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. He submitted that in fact, a very design conspiracy has been hatched by the accused persons to dupe the innocent and gullible persons by asking their documents to open the bank accounts and in furtherance of their common object, they have acted in a particular manner. He submitted that the accused no.1, Bindesh Madadiya is the key handler of the present applicant, who had come in contact with the applicant at Dubai, where the applicant herein had given him assurance of giving good commission if he would be in a position to bring/ collect the bank account kits of certain persons for the purpose of carrying out certain transactions and accordingly, the accused persons, Page 3 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined in connivance with each other, have obtained the documents of the innocent and gullible persons suppressing correct facts and based on it, bank accounts were opened and subsequently, kits were obtained and then, handed over to the applicant herein and thus despite station at Dubai, the applicant had actively participated in the commission of crime. He further submitted that the investigation papers collected so far clearly goes on to show that at the time of opening of the account, mobile number obtained with the help of the documents of the innocence persons, were used and it was linked with the said number and the said mobile number was being used by the accused to carry out transaction behind the back of those persons, whose documents were obtained and all those documents have been recovered from those accused persons and yet the investigation is going on. He further submitted that the concerned Investigating Officer has collected the CDR of the accused persons, who have been arrested and from those material, it seems that the applicant was in constant touch with those accused, which itself suggests involvement of the applicant in the commission of crime. He further submitted that it is a huge racket and there is also involvement of other accused persons and there might be number of persons, who are the victims of the fraud committed by the accused, therefore, it is not a case, wherein the discretion may be exercised in favour of the applicant, otherwise, proper investigation may not be carried out without his interrogation. He further submitted that not only Page 4 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined that, other accused have received amount either cash or through angadiya and for per transaction, the accused used to pay Rs.35,000/- to Rs.40,000/-. Over and above that, the statements of the accused persons have also been recorded, wherein they have stated in a categorical terms that they have received the aforesaid amount towards the transactions. It is, therefore, submitted that considering the seriousness of the offence and the allegations leveled in the FIR, the present application may not be entertained and it may be rejected.
6. Having heard the learned advocates appearing 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 applicants 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 applicants to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicants 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 Page 5 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined prejudice the accused, should be avoided. I have considered the following aspects.
7. It is required to be noted that normal procedure prescribed for curtailing the right to life & liberty, is that the investigating officer can arrest the accused even without warrant. No doubt this Court has extraordinary power to protect an innocent person. However, this power has to be exercised by the Courts with due circumspection.
8. So far as grant of anticipatory bail is concerned, this Court after considering number of decisions of the Apex Court as well as of this Court, has observed in case of Mohmed Salim Abdul Rasid Shaikh Vs. State of Gujarat, reported in 2001 (2) GLR 1580 as under;
"13. There is no scope for present applicant to urge that he may be saved from disgrace or unwarranted hardship. While entertaining the anticipatory bail application of the accused, the Court should consider various aspects such as;
[i] earlier offences registered against the applicant accused and the nature thereof including the area of activity, modus etc. if brought to the notice of the Court;
[ii] gravity of the circumstances in which the offence is committed. Whether custodial interrogation is, prima facie, unavoidable ?
[iii] likelihood of the accused fleeing Page 6 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined from justice;
[iv] position and status of the accused individually and also with reference to the victim and witnesses;
[v] likelihood of repetition of similar type of offence;
[vi] whether he would jeopardise his own life being faced with grief or grim prospects of possible conviction in the case;
[vii] likelihood of tampering with the
evidence or witnesses during the
process of investigation, status and stage of investigation;
[viii] plea of false implication on some special vendetta, if taken.
[ix] other relevant grounds which may apply to facts and circumstances of that particular case;'
9. Similarly, the Hon'ble Supreme Court has also considered the scope of Section 438 in case of Dukhishyam Benupani, Asstt Director, Enforcement Directorate [FERA] Vs. Arun Kumar Bajoria, reported in (1998) 1 SCC 52. The relevant observations made in Paragraph No.7 are quoted as under :-
"7. It seems rather unusual that when the aggrieved party approached the High Court challenging the order passed by a subordinate court the High Court made the Page 7 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined position worse for the aggrieved party. The officials of the Directorate are now injuncted by the Division Bench from arresting the respondent and the time and places for carrying out the interrogations were also fixed by the Division Bench. Such kind of supervision on the enquiry or investigation under a statute is uncalled for. We have no doubt that such type of interference would impede the even course of enquiry or investigation into the serious allegations now pending. For what purpose the Division Bench made such interference with the functions of the statutory authorities, which they are bound to exercise under law, is not discernible from the order under challenge. It is not the function of the Court to monitor investigation processes so long as such investigation does not transgress any provision of the law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences. A blanket order full insulating a person from arrest would make his interrogation a mere ritual."
10. Thus, what is discernible from the above is that while deciding anticipatory bail application, it Page 8 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined is the first duty of the Court to see seriousness of the offence, prima facie case and interest of the society at a large. Therefore, when no special and compelling circumstances made out before the Court and no case of false implication of present applicant in the alleged offence is made out before this Court, I am of the opinion that discretionary powers of this Court should not be exercised in favour of the present applicant.
11. It is well settled that an application preferred for anticipatory bail is an exceptional remedy to be granted in exception cases. The parameters and considerations governing the grant of anticipatory bail have been explained by the Hon'ble Supreme Court in number of cases. At this stage, I would like to rely upon the law laid down by the Hon'ble 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 (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 offence is not just an offence against an Page 9 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined 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 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 Page 10 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined 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 pre-arrest 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".
Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient Page 11 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation".
12. In case of Pratibha Manchanda and another Vs. State of Haryana and another reported in (2023) 8 SCC 181, the Hon'ble Apex Court in Paragraph No.21, observed as under:-
"21. 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 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."
13. At this stage, it is required to be noted that as this application has been preferred under the provisions of Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of anticipatory bail, I court would like to refer the decision of the Hon'ble Supreme Court in the case of Siddharam Page 12 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined Satlingappa Mhetre Vs. State of Maharashtra & Ors.,, reported in (2011) 1 SCC 694, more particularly Paragraph Nos.14 & 112, which read as under :- "14. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age- old principle that an individual is presumed to be innocent till he is found guilty by the court.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; the antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; The possibility of the applicant to flee from justice; The possibility of the accused's likelihood to repeat similar or the other offences. Whereas the accusation have been made only with the object to injuring or humiliating the applicant by arresting him or Page 13 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined her. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case."
14. So far as the facts of the present case are concerned, it is found out that it is alleged that all the accused, in connivance with each other, have hatched conspiracy to dupe the innocent and gullible persons by taking their documents like Aadhar Card, PAN Card, Election Card etc., and with the help of those documents, the accused have opened the bank account in their name, however at the time of opening of the said accounts, the mobile number obtained with the help of those documents and possessed by the accused, were linked with the said account and behind their back, the accused have entered into various transactions in crores of rupees and when the secret information was received by the members of the raiding party, they have carried out raid and apprehended six accused person, who are named in the FIR and during the course of their investigation, the name of applicant and other accused had come on surface, therefore, they were shown as not arrested accused. It is found out from the record that the applicant is one of the main accused behind commission of crime and the co- accused used to send different account kits comprising of the passbook, ATM Cards, sim-cards to the present applicant and on receiving it, the Page 14 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined applicant has done the transactions in crores of rupees and for the supplyment of those materials to the applicant, he used to pay amount to the co- accused towards commission and thus, prima facie involvement of the applicant in the commission of crime is found out. Further as stated above, CDR is also collected by the Investigating Officer during the course of investigation, which clearly goes on to show that the co-accused were in constant touch with the applicant. I have considered the statements of the witnesses provided by learned APP during the course of argument and having considered the same, it is found out that those accused have stated entire sequence of incident of events in a very graphical manner as to how they have hatched conspiracy and as to how they were forwarding the kits to the applicant including receiving of the amount from the applicant towards the commission. Thus from the above facts of the case, the custodial interrogation of the applicant is required.
15. The Hon'ble Supreme Court in the case of Sumitha Pradeep Vs. Arun Kumar C.K. & Anr., reported in 2022 SCC OnLine SC 1529 held that merely because custodial interrogation was not required by itself could not be a ground to grant anticipatory bail. The first and the foremost thing the Court hearing the anticipatory bail application is to consider is the prima facie case against the accused. The relevant extract of the judgment is reproduced hereinbelow:-
"It may be true, as pointed out by learned counsel appearing for Respondent No.1, that Page 15 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined charge-sheet has already been filed. It will be unfair to presume on our part that the Investigating Officer does not require Respondent No.1 for custodial interrogation for the purpose of further investigation. Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail. We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the High Court granting anticipatory bail to the accused should be quashed and set aside. 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 prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant Page 16 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined 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. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."
16. Thus while taking into consideration the ratio laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre (supra) as also ratio laid down in other decisions as stated above, I have gone through the contents of the FIR, which is placed on record and also considered the affidavit of the investigating officer filed before the learned Judge concerned opposing the bail application preferred by the applicants. Upon going through the contents of the FIR, it appears that prima facie case is made out against the applicants and material collected so far suggests the Page 17 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025 NEUTRAL CITATION R/CR.MA/12275/2025 ORDER DATED: 03/07/2025 undefined involvement of the applicants in the commission of crime.
17. For the foregoing reasons, having regard to facts and circumstances, peculiar to the instant case, as have been analyzed hereinabove, the applicants have failed to make out a special case for exercise of power to grant bail and considering the facts and parameters, necessary to be considered for adjudication of anticipatory bail, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 482 of the BNSS to grant anticipatory bail. More so, investigation is still going on in the present case. It is settled proposition of law that power exercisable under Section 482 BNSS, is somewhat discretionary in character and it is to be exercised with caution in exceptional cases. Hence, the present application seeking for anticipatory bail is hereby rejected.
18. Needless to say that observations and findings made hereinabove are limited to the decision of this pre- arrest bail application, and shall not influence any other proceedings arise from impugned FIR.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 18 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:18:02 IST 2025