Gujarat High Court
Bhavik Sureshbhai Shah vs State Of Gujarat on 11 September, 2025
NEUTRAL CITATION
R/CR.MA/21691/2024 ORDER DATED: 11/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 21691 of 2024
(FOR ANTICIPATORY BAIL)
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BHAVIK SURESHBHAI SHAH
Versus
STATE OF GUJARAT
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Appearance:
MS NAYNAVATI S JETHVA(10030) for the Applicant(s) No. 1
MR YASH J PATEL(11240) for the Respondent(s) No. 1
MR ROHAN SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 11/09/2025
ORAL ORDER
1. The applicant is seeking anticipatory bail in connection with an FIR produced at Annexure-A for the alleged offence mentioned therein.
2. Heard learned advocate, Mr. A.A. Zabuawala for learned advocate, Ms. N.S. Jethva for the applicant, learned APP Mr. Rohan Shah for the respondent - State of Gujarat and learned advocate, Mr. Yash Patel for the original complainant.
3. Learned advocate for the applicant referred to the FIR and submitted that the incident has occurred during the period between 26.09.2023 to 22.06.2024, for which, FIR has been lodged on 22.06.2024 and thus, there is gross delay in registering the aforesaid FIR, wherein the applicant has been wrongly arraigned as accused.
Page 1 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined He submitted that FIR has been lodged against total 4 accused persons, wherein the applicant is shown as accused no.1. He submitted that in fact, the father of the applicant had purchased the plot in question from the Chairman and Partner of M/s. Bishwa Corporation of Megh Malhar Co.Op.Soc.Ltd. on payment of sale consideration by executing registered sale deed and on the strength of the said registered sale deed, he became the owner of the said plot and share certificate, allotment letter, possession letter etc. have been issued in favour of the applicant. He submitted that in fact, the applicant is the bonafide purchaser of the plot in question, however as soon as the applicant came to know about the construction being carried out by somebody, he had gone there and tried to stop them from carrying further construction, which resulted into registration of the aforesaid FIR. He submitted that in fact, upon making inquiry, it was learnt that one Nitulbhai Patel had sold one plot to two persons and thereby he has played mischief with number of persons and because of his such inaction, civil as well as criminal complaints have also been filed against him and out of which, he has been convicted in criminal complaint lodged against him, which clearly goes on to show that the applicant is made scapegoat and he is the victim in the present case and despite the said fact, he is wrongly arraigned as accused in the present offence. He further Page 2 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined submitted that in fact, the applicant has entered into sale transaction with the said plot with the accused no.3, Manish Rathod and at that relevant point of time, all original documents have already been handed over to him for the purpose of carrying out further process of payment of stamp duty, who has not yet make entire payment of sale consideration, therefore, sale deed is yet to be executed, however for the said transaction, part payment of Rs.2,50,000/- was transferred in the account of the applicant and the said entry is reflected in the bank statement and it was agreed between the parties that the remaining amount would be paid at the time of execution of the sale deed. He submitted that in fact, the said accused no.3, Manish Rathod has filed quashing petition before this Hon'ble Court, wherein the Coordinate Bench of this Court has protected him, therefore under the protection of the order of this Hon'ble Court, he is not cooperating with the investigation and not supplying those original documents. He further submitted that in fact, the applicant had tried his level best to get back the custody of those original papers but the said accused, Manish Rathod is not supplying those original documents, as a result of which, the applicant has to suffer. He submitted that in fact, one Nitul Patel has carried out construction in the name of "Megh Malhar Co.Op.Hos.Soc.Ltd.", who adopted malpractice by selling one plot to Page 3 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined more members on the basis of share certificate, for which, criminal prosecution was launched, wherein he was found guilty. He, therefore, reiterated his submission that the applicant is the victim in the present offence and despite the said fact, he is wrongly arraigned as accused.
4. Learned advocate has referred the documents produced on record and submitted that in connection with the present FIR, other co-accused have approached this Hon'ble Court by filing quashing petitions, wherein they have been protected by the Coordinate Bench of this Court. He submitted that in fact, the quashing petition has also been preferred by the applicant, however, it is pending for adjudication, therefore, the present application is preferred. He further submitted that after the submission of the complaint, the applicant was called by the concerned Investigating Officer for the purpose of interrogation, therefore, the applicant had appeared and given his statement and thus, the applicant has already extended his cooperation to the concerned Investigating Officer and now there is no requirement of custodial interrogation of the applicant. He submitted that entire case of the prosecution hinges upon documentary evidence, which have already been collected by the concerned Investigating Officer during the course of investigation, therefore, now custodial interrogation of the applicant is not required and Page 4 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined 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 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.
5. On the other hand, learned APP Mr. Soni for the respondent - State of Gujarat has vehemently objected the present application and contended that prima facie involvement of the applicant is found out. He has 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. He submitted that it is the specific case of the applicant that he has sold the said plot to the co-accused, Manish Rathod and handed over all original documents but the said accused has not supplied original documents to the concerned Investigating Officer despite the fact that at earlier point of time, they were called by the concerned Investigating Officer and their statements were recorded. He further submitted that during the course of investigation, the Page 5 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined concerned Investigating Officer had gone to the house of the accused no.2, Anil Shah but he was not found available at his residence and statements to that effect have been recorded. He further submitted that as per the say of the applicant, one Mukeshkmar Veerchanddas Shrimali has also purchased one plot from Bishwa Corporation, therefore, his statement has also been recorded, wherein he has stated in a very categorical terms that he has not purchased any plot from the said scheme and in fact, the applicant herein had approached him and obtained/ taken signature upon certain papers by giving attractive offer that he would earn good profit from the said transaction, however, he has never paid any visit to the office of the advocate and thus, it clearly goes on to show that the applicant herein has created forged and fabricated documents with a sole intent to dupe the valuable rights of the complainant. He further submitted that even during the course of interrogation, he had not extended any kind of cooperation and by saying that he had already handed over all the documents to the accused, Manish Rathod, who is not giving back despite the fact that entire amount of sale consideration had not been paid, the applicant is trying to escape from the liability, however, the said story put forward by the applicant is not believable. He submitted that in fact, the accused have hatched conspiracy and Page 6 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined as a part of it, the applicant had forged the documents like share certificate, possession letter, allotment letter etc. and on the strength of those forged documents, they are entering into sale transaction of those plots with a sole intent to pocket the amount of sale consideration and dupe the innocent persons. He further submitted that in fact, the applicant is having antecedents. He further submitted that even in the quashing petition preferred by the applicant before this Hon'ble Court is also pending without any stay. He further submitted that even the investigation is at crucial stage and considering the facts of the case, the custodial interrogation of the applicant is required to bring correct facts on record. It is, therefore, urged that the present application may not be entertained.
6. Learned advocate, Mr. Patel appearing for the original complainant has also objected the present application contending that prima facie involvement of the applicant is clearly found out from the investigation carried out so far. He referred to the affidavit filed by the original complainant and submitted that in the affidavit, entire modus operandi of the applicant is clearly pointed out and as to how the applicant has created forged and fabricated documents with oblique motive. Referring to the documents produced on record, it is submitted that at the relevant point of time i.e. in the year 2006 when Page 7 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined the father of the applicant had purchased the said plot, the applicant was aged about 12 years, therefore, the submission of learned advocate for the applicant with regard to the purchase of the plot in the name of the applicant cannot be believed. He further submitted that the said Nitul Patel was not partner in the Bishwa Corporation in the year 2005 but he joined the said Corporation as partner in the year 2011 and the said fact is also accepted by him in the statement recorded by the concerned Investigating Officer during the course of hearing. He further submitted that in fact, right from the beginning, it was the modus operandi of the accused to dupe the complainant after pocketing amount of sale consideration, which they have done and thus, the accused have committed alleged offence of forgery. 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 required.
7. 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 Page 8 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined 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.
8. 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. 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.
9. There is no substantial difference between Sections 438 and 439 CrPC so far as appreciation of the case as to whether or not a bail is to be Page 9 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined 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) 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.
10. Having heard learned advocates appearing for the parties and having considered the allegations leveled in the FIR, it is found out that though the original complainant is the owner and occupant of the plot nos.43, 45 and 47 and one Jigneshbhai Page 10 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined Pravinchandra Shah is the owner of plot no.46, the accused persons in connivance with each other have forged the documents like share certificate, possession letter, allotment letter, blank transfer form, resolution etc. and thereby tried to create ownership over the said plot. Not only that, all those forged documents were found from the residence of the applicant herein. Even, the applicant is not registered member of Megh Malhar Co.Op.Ho.Soc.Ltd. and despite the said fact, by creating forged and fabricated documents, he is claiming ownership over the plot, which itself suggests involvement of the applicant in the commission of crime.
11. Over and above that, when the query was made to learned advocate for the applicant with regard to the presence of the applicant at the place of occurrence at the time of commission of crime stating that as to why the applicant was there, learned advocate has failed to explain the presence of the applicant. Further when the applicant was asked to produce original copies of the documents, he is also unable to produce those set of documents and also failed to explain about the said aspect. On the above aspect, I have considered the affidavit filed by the concerned Investigating Officer filed before the learned Judge concerned at the time of opposing the bail application preferred by the applicant and having considered the same, it is found out that in the Page 11 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined Government record, no plot found registered in the name of the applicant, which itself suggests creation of forged documents by the accused in connivance with each other. Further in the quashing petition preferred by the applicant, no stay and/or protection has been granted by the Hon'ble Court. Therefore this being a case of creation of forged and fabricated documents as also forgery and investigation is at crucial stage, the custodial interrogation of the applicant is badly needed.
12. 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. I have also considered the statements of the witnesses recorded by the concerned Investigating Officer during the course of investigation, which clearly goes on to show the active involvement of the applicant in the commission of crime including the fact of creation of forged and fabricated documents.
13. It is well settled that an application preferred for anticipatory bail is an exceptional remedy to be granted in exception cases. The parameters and Page 12 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined 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 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 Page 13 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined 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 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 Page 14 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined 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".
14. 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 Page 15 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined 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."
15. 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 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.Page 16 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025
NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined And its non-application to a certain special category of offences cannot be considered as violative of Article 21."
16. 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 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 Page 17 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined 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."
17. 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 charge-sheet has already been filed. It will Page 18 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined 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 aspects to be considered along with other Page 19 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined 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."
18. 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 Page 20 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined the involvement of the applicants in the commission of crime.
19. 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.
20. 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 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 Page 21 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025 NEUTRAL CITATION R/CR.MA/21691/2024 ORDER DATED: 11/09/2025 undefined that power exercisable under Section 482 BNSS, is somewhat discretionary in character and it is to be exercised with caution in exceptional cases.
21. Hence, the present application seeking for anticipatory bail is hereby rejected.
22. 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 22 of 22 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Sep 17 2025 Downloaded on : Wed Sep 17 21:52:19 IST 2025