Gujarat High Court
Maldev Ramubhai Bharwad vs State Of Gujarat on 26 June, 2025
NEUTRAL CITATION
R/CR.MA/11430/2025 ORDER DATED: 26/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11430 of 2025
(FOR ANTICIPATORY BAIL)
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MALDEV RAMUBHAI BHARWAD
Versus
STATE OF GUJARAT
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Appearance:
MR SALIM M SAIYED(5172) for the Applicant(s) No. 1
MR RAJAN J PATEL(6775) for the Respondent(s) No. 1
MR NIRAJ SHARMA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 26/06/2025
ORAL ORDER
1. The applicant is an accused of an FIR being C.R. No.11191008250294/2025 registered with Chandkheda Police Station for the offences under Sections 406, 420, 467, 468 and 114 of the Indian Penal Code.
2. Heard learned advocate, Mr. Salim Saiyed for the applicant, learned APP Mr. Niraj Sharma for the respondent - State of Gujarat and learned advocate, Mr. Rajan Patel for the original complainant.
3. Learned advocate submitted that FIR is lodged against total 3 accused persons, wherein the applicant is shown as accused no.3, however except the present applicant, other accused has already been arrested and, thereafter, released on bail. He submitted that it is the case of the complainant that all three accused, in connivance with each other, have hatched conspiracy to cheat Page 1 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined the complainant and under the guise of execution of the sale deed in his favuor, Rs.51,00,000/- have been taken from the complainant and after receiving the said amount, for one reason or other, they were evading to execute the sale deed and, thereafter, the accused have stopped picking up the calls of the complainant and on demand of it, one of the accused had issued cheque to the complainant and when the said cheque was deposited by the complainant, it was dishonoured, therefore, the proceedings under the provision of the NI Act have been instituted, copies of such documents are produced on record and, thereafter, the aforesaid FIR has been lodged. He submitted that the serious allegations leveled against the accused is that they have shown one power of attorney purportedly prepared by the original land owner and on the strength of it, the accused have given assurance to sale the land in his favour, however, all those documents have already been collected by the Investigating Officer during the course of investigation, therefore, now custodial interrogation of the applicant is not required and all the offences are exclusively triable by the Court of Magistrate. Thus making above submissions, it is urged that the applicant may be enlarged on anticipatory bail as considering the nature of allegations, custodial interrogation at this stage is not necessary an the applicant will keep himself available during the course of Page 2 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined investigation, trial also and will not flee from justice and is ready and willing to abide by all the conditions including imposition of conditions while releasing the applicant on anticipatory bail.
4. On the other hand, learned APP Mr. Sharma for the respondent - State of Gujarat as well as learned advocate, Mr. Patel for the original complainant have vehemently objected the present application and contended that prima facie involvement of the applicant is found out. They have referred to entire sequence of incidents of events narrated by the complainant in a very graphical manner and submitted that specific role is attributed to the applicant herein. They submitted that it is the specific case of the complainant that all three accused have cheated the complainant and by showing one power of attorney, it was stated that the original land owner had executed said power of attorney in favour of the present applicant and if the complainant would pay Rs.51,00,000/-, in that event, they would execute the registered sale deed in his favour and accordingly relying upon them, the complainant had paid Rs.51,00,000/- to them but despite his best efforts, the registered sale deed was not executed in his favour and thereby they were delaying the process of execution of the sale deed and when the complainant had gone to the office of the accused, one of the accused had issued cheque in favour of the complainant, Page 3 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined however, the said cheque was dishonoured, which resulted into initiation of proceeding under the NI Act, wherein the accused, who had accused cheque, have been convicted by the court concerned. He submitted that out of total amount of Rs.51,00,000/-, the applicant has received Rs.11,00,000/- and Rs.20,00,000/- each is received by other two accused. He further submitted that even during the course of investigation, it is revealed that the original land owner has not executed any power of attorney, which the accused are possessing and the said fact came to the notice of the complainant when he had published notice for execution of the sale deed, wherein the original land owner had raised his objections and subsequently, the said original land owner had issued public notice in daily newspaper stating that he had not executed any power of attorney in favour of anybody including the applicant herein. They have also submitted that there are ample material gathered by the concerned IO, which clearly goes on to show that the present applicant in connivance with each other and with a sole intent to deceive the complainant, hatched conspiracy and executed the crime and the applicant is having 7 antecedents reported against him. It is, therefore, urged that as the investigation is at crucial stage, the present application may not be entertained as the custodial interrogation of the applicant is Page 4 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined required.
5. 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 prejudice the accused, should be avoided. I have considered the following aspects.
6. 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 Page 5 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined exercised by the Courts with due circumspection. It is required to be noted that the grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed.
7. There is no substantial difference between Sections 438 and 439 Cr.P.C. so far as appreciation of the case as to whether or not a bail is to be granted, is concerned. However, neither anticipatory bail nor regular bail can be granted as a matter of rule. The anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. Parameters for grant of anticipatory bail in a serious offence 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. In this regard, a useful reference can be made to the decisions of the Hon'ble Supreme Court in case of D.K. Ganesh Babu Vs. P.T. Manokaran & Ors., reported in (2007) Page 6 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined 4 SCC 434; in case of State of Maharashtra & Anr. Vs. Mohd. Sajid Husain Mohd. S. Husain & Ors., reported in (2008) 1 SCC 213; and in case of Union of India Vs. Padam Narain Aggarwal & Ors., reported in (2008) 13 SCC 305.
8. Having heard learned advocates appearing for the parties and having considered the allegations leveled in the FIR, it is found out that on the strength of the forged power of attorney, the accused have received Rs.15,00,000/- through RTGS and Rs.36,00,000/- in cash in part totalling to Rs.51,00,000/-, out of which, Rs.11,00,000/- came into the share of the present applicant, whereas Rs.20,00,000/- each came into the share of other accused and despite efforts being made by the complainant for execution of the registered sale deed, one of the accused had issued cheque in favour of the complainant, which was returned unpaid when it was deposited, therefore, the proceedings under the NI Act came to be instituted by the complainant against the accused concerned, wherein an order of conviction has been passed. It is found out on record that so-called power of attorney, which the accused were possessing, was not executed by the original land owner and in fact, by publishing notice in the daily newspaper, he has disclosed that he has not executed power of attorney to anyone including the applicant, which itself suggests that power of attorney possessed by the applicant is forged one. Further, there are Page 7 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined antecedents reported against the applicant. I have considered the affidavit filed by the concerned Investigating Officer opposing the bail application preferred by the accused before the learned Judge concerned, which clearly goes on to show that strong apprehension has been shown with regard to tampering of the evidence and hampering of the witnesses. I have also gone through the findings given and conclusion arrived at by the learned Judge while rejecting the bail application.
9. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/ deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the Page 8 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined offence in question.
10. 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 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 Page 9 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined 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 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 Page 10 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined 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 freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation".
11. 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:-
Page 11 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined "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."
12. In State of M.P. & Anr. Vs. Ram Kishna Balothia & Anr., reported in AIR 1995 SC 1198, the Hon'ble Supreme Court has considered the nature of the right of anticipatory bail and observed as under:
"We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code..... Also anticipatory bail cannot be granted as a matter of right. It is essentially a Page 12 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21."
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 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 Page 13 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined 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 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. 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 Page 14 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined hereinbelow:-
"It may be true, as pointed out by learned counsel appearing for Respondent No.1, that 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 Page 15 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 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. 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."
15. 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 Page 16 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined 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 involvement of the applicants in the commission of crime.
16. It is required to be noted at this stage that the Hon'ble Supreme Court in catena of judicial pronouncements have observed that a court may reject an anticipatory bail application when custodial interrogation is deemed necessary for a thorough investigation, even if the applicant argues that such interrogation isn't required. Further, while custodial interrogation can be a factor in denying anticipatory bail, it is not the sole determinant, and courts will also consider other factors related to the severity of the offense and the need for a comprehensive investigation.
17. In the above facts and circumstances and considering the observations on the legal aspect of the matter, as applicant is actively involved in the offence, I have absolutely no doubt that if applicant is equipped with such an order of anticipatory bail before he is interrogated by the Police, in that event, it would greatly harm the investigation and would impede the prospects of unearthing the serious offence and applicant may again indulge in such type of criminal activities. Therefore, I do not find any exceptional ground to Page 17 of 18 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025 NEUTRAL CITATION R/CR.MA/11430/2025 ORDER DATED: 26/06/2025 undefined 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.
18. Hence, the present application seeking for anticipatory bail is hereby rejected.
19. Needless to say that observations and findings made hereinabove are limited to the decision of these pre-arrest bail applications, 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 Jun 30 2025 Downloaded on : Mon Jun 30 21:52:38 IST 2025