Memon Mohmad Faizan @ Rakesh Mishra vs State Of Gujarat

Gujarat High Court

Memon Mohmad Faizan @ Rakesh Mishra vs State Of Gujarat on 9 October, 2025

                                                                                                                NEUTRAL CITATION




                            R/CR.MA/13803/2025                                    ORDER DATED: 09/10/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 13803
                                                  of 2025

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                                        MEMON MOHMAD FAIZAN @ RAKESH MISHRA
                                                       Versus
                                                 STATE OF GUJARAT
                       ==========================================================
                       Appearance:
                       MR ABDULVAAJID Z SHAIKH(11566) for the Applicant(s) No. 1
                       MR. HARDIK SONI, LD. ADDL. PUBLIC PROSECUTOR for the
                       Respondent(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                                              Date : 09/10/2025

                                                               ORAL ORDER

1. Rule returnable forthwith. Learned APP waives service of notice of rule for respondent - State of Gujarat.

2. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the applicant has prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No.11210015250078 of 2025 registered with D.C.B. Police Station, Surat for the alleged offences as mentioned in the FIR.

3. Learned advocate Mr. A.Z. Shaikh appearing for the applicant submits that the allegations made in the FIR are of such a nature, for which, custodial interrogation of the applicant at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation as well as the trial proceedings and will not flee from justice. He further submits that the FIR came to be lodged on 17.05.2025, for the incident alleged to have been taken place during the period Page 1 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025 NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined between 15.10.2016 and 29.06.2024, and as such, there is a delay of nine years in registering the FIR. Learned advocate Mr. Shaikh also submits that looking to the background of the controversy, the same appears to be purely of a civil nature, and the Hon'ble Apex Court, time and gain, has expressed its disapproval for imparting criminal colour to a civil dispute, made merely to take advantage of a relatively quick relief granted in a criminal case in contrast to civil dispute, and the Hon'ble Supreme Court has, time and gain, warned of setting into motion a criminal law for recovery of money arising out of a civil disputes. Learned advocate Mr. Shaikh also submits that the sole co-accused in the present offence, having attributed with similar role than that of the present, has already been enlarged on regular bail by the learned Sessions Court. He submits that the present applicant has not received any money directly from the complainant, and the alleged amount was paid by the complainant to the co-accused, which was then received by the present applicant from him, and upon the assurance given by co- accused Nasir Shaikh, the agreement to sell came to be executed in favour of the complainant. Even, the amount of Rs.20,000/- has already returned back to the co-accused- Nasir Shaikh by the present applicant. Learned advocate Mr. Shaikh further submits that there was no intention on the part of the present applicant from the very inception to induce or cheat the complainant. The present applicant is a reputed builder, and with a view to harm its reputation in the Society as also to exert pressure upon him, false and frivolous FIR has been lodged against him. The applicant has remained available to the complainant through out and answered all his communications, and has neither absconded or concealed himself at any stage.

NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined

4. Learned advocate Mr. Shaikh further submits that the complainant has failed to produce any evidence either oral or documentary, to substantiate his claim of cash payment of Rs.20,00,000/-. He submits that there exists no entrustment or fiduciary relationship between the complainant and the applicant that could invoke the ingredients of Section 409 of IPC. He also submits that the essential ingredients to constitute the offence of cheating under Section 420 of IPC, i.e, fraudulent inducement and dishonest intention at the inception of the transaction, are completely missing in the case on hand. Moreover, the offence, as alleged, is triable by the Court of Magistrate. He further submits that the entire case of the prosecution rests upon the documentary evidences, and all those documents have already been seized by the investigating officer. Moreover, the applicant does not have any past antecedents. Learned advocate Mr. Shaikh further submits that if we look at the FIR, the allegation being presumptive is equal between present applicant and the co-accused who has already been released, and in that circumstances, principle of parity would be attracted in the present case.

5. In such circumstances, referred to above, learned advocate Mr. Shaikh appearing for the applicant prays that there being merit in the present application, the same be allowed and the applicant be released on anticipatory bail.

6. On the other hand, the present application has been vehemently opposed by the learned APP. Learned APP submits that the present applicant has been named in the FIR along with his specific role. He further submits that the active involvement of the present applicant in the commission of crime is clearly Page 3 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025 NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined found out from the materials on record. Learned APP further submits that the present applicant is evading his arrest since beginning, and during the course of investigation, certain incriminating material has been found out against him. He further submits that the present applicant is a builder by profession, and who floated a residential scheme in the name of 'Madiha Residency', and the complainant purchased two shops situated on the ground floor of the said apartment on total sale consideration of Rs.33,00,000/-, out of which, initially an amount of Rs.20,00,00/- in cash was taken from the complainant, and an agreement to sell was also executed in favour of the complainant, however, late, the applicant backed from his promise, and despite repeated requests made by the complainant to handover the possession of the said shops and to execute the sale deed, the present applicant declined to handover the possession, and in fact, sold the said property to a third party. Not only that, threats were also administered by the applicant to the complainant. He submits that that the applicant has failed to establish case for extraordinary relief.

7. In such circumstances, referred to above, learned APP prays that there being no merit in the present application, the same be rejected.

8. Heard the learned counsel appearing for the parties and perused the record.

9. Heard the learned counsel appearing for the parties and perused the record.

10. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable Page 4 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025 NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused. Though at the stage of granting bail execution and appreciation of evidence is not permissible. Hence, custodial interrogation is required.

11. From the record, it transpires that there is a prima facie case against the present applicant-accused, and his direct involvement in the present offence cannot be ruled out. It appears from the record that there is a huge fraud of lakhs of rupees alleged to have been committed by the present applicant under the guise of investment being made in his scheme, and thereby the complainant has been duped with an amount of Rs.20,00,000. It also transpired from the record that the present applicant is a builder, who floated a residential cum commercial scheme, wherein the applicant promised the complainant of giving two shops, and received an amount of Rs.20,00,000/- from the complainant by executing an agreement to sell without possession, however, later instead of executing sale deed and handing over the possession to the complainant, the applicant-accused fraudulently transferred the ownership of the said shops to a third party. Moreover, the present applicant is evading his arrest since beginning. Furthermore, as argued by learned advocate for the applicant that the amount has already been returned back, however, the applicant has not produced any details or evidence of the payment made to the complainant. Thus, it appears that Page 5 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025 NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined neither the possession of the shops is given to the complainant nor his amount is returned back to him by the present applicant. That apart, the investigation is underway and is at very initial stage, and the true facts of the offence is still required to be unearthed, and for that, the custodial interrogation of the present applicant seems to be very much necessary. Further, the offence with which the applicant is charged with is an economic offence and is against the interest of the society.

12. It goes without saying that the alleged offence of duping the complainant of lakhs of rupees is quite grave in nature. Hence, while it is extremely important to protect the personal liberty of a person, it is equally incumbent upon me to analyze the seriousness of the offence and determine if there is a need for custodial interrogation.

13. In Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, the Supreme Court carefully considered the principles established by the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565. After a thorough deliberation, the Supreme Court arrived at the following conclusion:

"112. The following factors and parameters can be taken into consideration while dealing with anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone Page 6 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025 NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv)The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi)Impact of grant of anticipatory bail, particularly in cases of large magnitude affecting a very large number of people.

xxx xxx xxx"

14. In Sushila Aggarwal v. State (NCT of Delhi), (2018) 7 SCC 731, the Constitution Bench of the Hon'ble Apex Court reaffirmed that when considering applications for anticipatory bail, courts should consider factors such as the nature and gravity of the offences, the role attributed to the applicant, and the specific facts of the case.

15. In Satpal Singh vs. State of Punjab, (2018) 13 SCC 813, the Supreme Court has held that the satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail.

16. In Pratibha Manchanda and another Vs. State of Haryana and another, (2023) 8 SCC 181, the Supreme Court has opined that "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 Page 7 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025 NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined 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."

17. 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 V. 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 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;

NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined [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; "

18. Similarly, the Apex Court has also considered the scope of Section 438 in case of DUKHISHYAM BENUPANI, ASSTT DIRECTOR, ENFORCEMENT DIRECTORATE [FERA] V. ARUN KUMAR BAJORIA reported in 1998 [1] SCC 52. The relevant observations made in para-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 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 Page 9 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025 NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined 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."

19. Coming to the case on hand, from the allegations levelled in the FIR and the materials placed on record, it appears that the very serious allegations of misappropriation of lakhs of rupees have been made against the applicant. Moreover, the present case also falls within the category of economic offences and the amount involved in the present case is quite huge, and it is trite law that in economic offences, benefit of pre-arrest bail should not be extended in favour of the accused in a casual manner. The amount involved in the present case is also quite huge, and the offence as alleged is also punishable with life imprisonment. Thus, at this stage, in my view, custodial interrogation of the applicant is very much necessary.

20. So far as the submission of learned counsel for the applicant to grant bail to the applicant on the ground that the other co-accused have been granted bail, also cannot be accepted as parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. In this context, I would like to refer to and rely upon some of the relevant observations made by the Hon'ble Apex Court in the case of Tarun Kumar vs. Asst. Director, Directorate of Enforcement, Special Leave Petition No.9431 of 2023, decided on 20.11.2023, which read thus;

NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined "18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day- to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.

19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for Page 11 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025 NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision."

21. Lastly, it may be noted that as held in catena of decisions, the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Undoubtedly, economic offences have serious repercussions on the development of the country as a whole. To cite a few judgments in this regard are Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation, reported in (2013) 7 SCC 439, Nimmagadda Prasad vs. Central Bureau of Investigation, (2013) 7 SCC 466, Gautam Kundu vs. Directorate of Enforcement (Prevention of Money- Laundering Act), Government of India Through Manoj Kumar, Assistant Director, Eastern Region, (2015) 16 SCC 1, State of Bihar and Another vs. Amit Kumar alias Bachcha Rai, (2017) 13 SCC 751. The Supreme Court taking a serious note with regard to the economic offences had observed as back as in 1987 in case of State of Gujarat vs. Mohanlal Jitamalji Porwal and Another, (1987) 2 SCC 364 as under:-

NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined "5... 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 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 without 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..."

22. Moreover, when the Court is satisfied that a prima facie case of custodial interrogation of the accused is made out by the prosecution for securing the incriminating materials from the information likely to be received from the accused, then the power under Section 482 should not be exercised in a routine manner. The presence of the applicant, in the peculiar facts and circumstances of the present case, seems to be needed to uncover the truth. Further, the discretion under Section 482 cannot be exercised with regard to offences punishable with death or imprisonment for life, unless the court at that very stage is satisfied that such a charge appears to be false or groundless. The larger interest of the public and State demand that in serious cases like economic offences involving cheating and misappropriation of huge volume of amount, the discretion under Section 482 of the BNSS should not be exercised.

23. Thus, what is discernible from the above is that while deciding anticipatory bail application, it is the first duty of the Page 13 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025 NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined 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 are made out and no case of false implication of present applicants in the alleged offence is made out before this Court, I am of the opinion that this Court should refrain itself from exercising its discretionary powers in favour of the present applicants at this stage.

24. Further, the present applicant is involved in white collar socio-economic offence which constitute a class apart and needs to be visited with a different approach. The economic offences adversely affect the economic and social fabric of the country. In such circumstances also, grant of anticipatory bail at this stage would frustrate the investigation.

25. In view of above discussion and considering the materials produced before this Court, I am of the opinion that there seems to be a prima facie involvement of the present applicant in the commission of the alleged offence. Thus, this Court is of the opinion that at the initial stage of the investigation of the offence, grant of anticipatory bail in favour of the applicant is likely to hamper the investigation and investigating agency is likely to lose an opportunity to exploit all the fact situation, probabilities or opportunities which the Agency may get during the custodial interrogation of a person, and therefore, keeping in mind all the factors, no interference is required at this stage. The impugned order passed by the trial court, rejecting anticipatory bail application of the applicants is just and proper and does not require any interference at the end of this Court.

26. In the result, the application, being devoid of any merit, is Page 14 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025 NEUTRAL CITATION R/CR.MA/13803/2025 ORDER DATED: 09/10/2025 undefined hereby rejected. However, it is made clear that the observations made by this Court herein above at this stage while deciding the anticipatory bail application, would not come in the way of the applicant at the time as and when if ultimately the trial court is proceeded with the trial, and at the stage of consideration of regular bail application, if preferred by the applicant. Rule is discharged.

(DIVYESH A. JOSHI,J) VAHID Page 15 of 15 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:12:59 IST 2025