Gujarat High Court
Ganesh Shivkumar Sagar S/O Shiv ... vs State Of Gujarat on 9 November, 2022
Bench: Samir J. Dave
R/CR.MA/20023/2022 ORDER DATED: 09/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20023 of 2022
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GANESH SHIVKUMAR SAGAR S/O SHIV KUMAR SAGAR
Versus
STATE OF GUJARAT
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Appearance:
MR KUNAL MALHOTRA FOR MS.AKSHITABA SOLANKI(6782) for the
Applicant(s) No. 1
MR JK SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 09/11/2022
ORAL ORDER
1. The present bail application is filed under Section
439 of the Code of Criminal Procedure by the applicant for
regular bail in connection with an FIR being CR NO. I-
11210015220075 of 2022 registered with DCB Police Station,
Surat City for the offence punishable under Sections 406, 409
of the Indian Penal Code and Sections 3 and 4 of GPID Act and
Sections 4, 5 and 6 of the Lottery Cheating and Money
Circulation Scheme Act.
2. Heard learned advocate for the applicant as well as
learned APP for the respondent-State.
3. Learned advocate for the applicant submits that the
the applicant is a freelancer digital marketer for various
R/CR.MA/20023/2022 ORDER DATED: 09/11/2022
companies and has been working in network marketing for last
16 years. Applicant is a law-abiding person and has clear
antecedents. That, the arrest of the applicant in the present
case is in violation of section 41A Cr PC and hence is perverse
and illegal as per law. That, as per the precedents laid down by
the Hon'ble Supreme Court of India in catena of cases, no
arrest of an offender shall be made for offences which are
punishable up to 7 years of imprisonment or having maximum
of 7 years of imprisonment unless investigating officer in his
wisdom feels that the arrest is imperative and thereafter, he
needs to take permission of concerned DCP before making an
arrest. In any other case, where arrest is not required, IO is
duty bound under the law to send a notice under section 41A
Cr PC to accused and direct him to join the investigation. It is
further submitted that offences under IPC, GPID and Lottery
Cheating and Money Circulation Scheme Act as alleged in the
present FIR attracts maximum imprisonment up to 7 years and
henceforth arrest in present case is in clear violation of
precedents laid down by the Supreme Court of India. Further,
no notice under section 41A was served upon the applicant nor
any notice was received by him in the present FIR and he was
illegally detailed and arrested in the present case by the police.
Because Complainant in the present FIR has not disclosed the
R/CR.MA/20023/2022 ORDER DATED: 09/11/2022
true and correct facts in his complaint filed before PS DCB
Surat City. That, Bux Coin was launched by Bull Infotech
Company, a company registered in London which is owned
and run by co-accused Mohsin Jamil which is into business of
Blockchain development and forex trading and applicant has
nothing to do with the said company in any discharged. Hence
no offence under section 406 IPC 1s said to have been
committed by the applicant in the present FIR. That, the chief
agent of www.bitsolives.com hired by co-accused Mohsin Jamil
to promote Bux Coin was co-accused Prashant Bhrambhatt and
applicant was not the agent of Bux Coin or Bitsolives.
Furthermore, to attract section 409 IPC, it is necessary for the
prosecution to prove that there was misappropriation of
property as laid down under section 405 IPC. Since no offence
is made out under section 405 IPC, section 409 IPC cannot be
attracted in present FIR. Furthermore, since applicant is not the
agent of Bitsolives or Bux Coin section 409 IPC is not
applicable upon the present applicant.
4. It was further submitted by learned advocate for the
applicant that no offence under GPID Act is made out against
the applicant. That, nowhere is connected nor have anything to
do with web portal www. bitsolives.com or with Bull Infotech
Ltd. which launched the Bux Coin and is owned and controlled
R/CR.MA/20023/2022 ORDER DATED: 09/11/2022
by co-accused Mohsin Jamil. It is submitted that deposit if any
was done in Bux Coin scheme of which neither applicant is
neither director nor the promoter or is anyhow involved in
conducting day to day affairs. Hence, it was requested by
learned advocate for the applicant to allow present applicant
by releasing the applicant on regular bail. In support of his
arguments learned advocate for the applicant has relied upon
on the following judgments:
1. Judgment passed by Hon'ble Supreme Court in in
case of Arnesh Kumar v. State of Bihar and Anr.
(Criminal Appeal No. 1277 of 2014)
2. Judgment passed by Hon'ble Supreme Court in in
case of Munawar v. State of Madhya Pradesh and Ors
(Writ Petiton (Criminal) No. 62 of 2021)
3. Judgment passed by Hon'ble High Court of
Judicature at Bombay in case of Hemant Vishwasrao
Suryavanshi v. The State of Maharashtra.
4. Judgment passed by Hon'ble Supreme Court in in
case of P. Chidambaram v. Directorate of Enforcement"
(Criminal Appeal No. 1831 of 2019)
5. Judgment passed by Hon'ble Supreme Court in in
case of Sanjay Chandra v. CBI (Criminal Appeal No. 2178
of 2011)
R/CR.MA/20023/2022 ORDER DATED: 09/11/2022
5. On the other side, learned APP for the respondent-
State has strongly objected the submissions made by learned
advocate for the applicant and submitted that the applicant is
involved in the serious offence. Not only that, there is strong
prima facie case against the present applicant. That, the
applicant has criminal antecedents and there are all changes
that if he is released on bail, he may try to win over the
witnesses and tamper with the evidences. That, as the
applicant is involved in the serious offence, no linency view
should be taken in favour of the applicant by releasing him on
bail. Ultimately, it was submitted by learned advocate for the
applicant to reject present application.
6. Having heard learned advocate for the applicant as
well as learned APP for the respondent-State and considering
the averments made by the applicant in his application, it
appears that the applicant was arrested in connection with an
FIR being CR NO. I-11210015220075 of 2022 registered with
DCB Police Station, Surat City for the offence punishable under
Sections 406, 409 of the Indian Penal Code and Sections 3 and
4 of GPID Act and Sections 4, 5 and 6 of the Lottery Cheating
and Money Circulation Scheme Act.
7. From the documents produced on record, it appears
that the applicant is involved in other offences as mentioned in
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the memo of the application ie., FIR being Crime No. 54 of
2021 for the offence punishable under Sections 420, 406, 34
of the Indian Penal Code and Sections 3 and 4 of the MPID Act,
Section 66D of the IT Act with the PS Cyber Crime (Pune City),
Maharashtra as well as FIR being CR No. 166/2022 for the
offence punishable under Sections 406, 420, 34 of the Indian
Penal Code, Sections 3 and 4 of the MPID Act and Section 66D
of the Information Technology Act. Thus, while considering the
present bail application, such aspect of antecedents cannot be
ignored in such kind of serious offence.
8. It appears from the order passed by learned trial
court while rejecting the bail application filed by the applicant
being GPID Criminal Misc. Application No. 142 of 2022 that
learned trial court has concluded that applicant has actively
participated in the commission of offence and there is strong
prima facie case against the present applicant. It was further
concluded that there is very high probability of tampering with
the evidence of the prosecution at the hands of the applicant.
9. Moreover, learned advocate for the applicant has
placed his reliance on the various judgments of Hon'ble
Supreme Court of India as mentioned above but, this court
thought it fit that every case has its own facts and therefore,
while considering such aspect, the facts mentioned in the
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judgments produced by learned advocate for the applicant are
not applied to the present case.
10 Thus, while considering the aforesaid discussion
and observations, this court deems it not fit to accept the
prayer of the applicant to release him on regular bail and
accordingly, present application stands rejected.
Rule stands discharged.
(SAMIR J. DAVE,J)
K. S. DARJI
