Sendhabhai Madhavlal Patel ... vs State Of Gujarat
2023 Latest Caselaw 3209 Guj

      R/CR.MA/5226/2023                               ORDER DATED: 24/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 5226 of 2023

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 SENDHABHAI MADHAVLAL PATEL PROPRIETOR OF DIVYA CREATION
                         Versus
                   STATE OF GUJARAT
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Appearance:
RUPAAL V DAVE(8391) for the Applicant(s) No. 1
MR RONAK RAVAL, APP for the Respondent(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                Date : 24/04/2023

                                 ORAL ORDER

1. This application has been preferred under Section 438 of the Code of Criminal Procedure, 1973 praying for transit bail in connection with complaint No.19 of 2022 filed before Dindigul DCB Police Station, District Dindigul, Tamilnadu for the offence punishable under Sections 406, 420 and 120(B) etc. of the Indian Penal Code.

2. As the applicant is apprehending his arrest in connection with the above complaint filed by the complainant, he has prayed for temporary protection.

3. At this stage, it needs to be reiterated that the law, with regard to apprehending arrest an application for grant of pre-arrest / anticipatory bail, is by now well settled that a person is entitled to approach Sessions Court or High Court or even Hon'ble Apex Court, as the case may be, praying for grant of appropriate protection from arrest inspite of there being no FIR registered

R/CR.MA/5226/2023 ORDER DATED: 24/04/2023

against the such person. The question is that if a person could be protected by a High Court in case of apprehension of his/her being arrested even in absence of FIR, would it be justifiable for the High Court to grant protection to a person who apprehends his/her arrest in a different State and in case no FIR has been registered till the hearing of case in taken up, in the considered opinion of this Court, the question has been answered by a Division Bench of the High Court of Bombay in the judgment of N.K. Nayar and others Vs. State of Maharashtra and others reported in 1985 Cri.L.J. 1887. In the above referred decision the Hon'ble Division Bench of the Bombay High Court was concerned with an application by a person to whom a notice had been issued by the Regional Provident Fund Commissioner of Gujarat State, and whereas the applicant therein had apprehended that qua having committed offence under the Provident Funds Act, he would be arrested upon entering into Gujarat State. The Hon'ble Division Bench had, in the said decision inter alia, noted as thus :

"...The provisions for the grant of anticipatory bail are contained in Section 438 of the Cr. P.C. An application for such type of bail can be made to the High Court or to the Court of Session whenever a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence.

Thus, the real cause for making an application under Section 438 is the contemplated arrest of a person. If this arrest is likely to be effected within the jurisdiction of this Court, we think that the concerned person should have the remedy of applying to this Court for anticipatory bail. This is more so when the Supreme Court in the case of Gurbaksh Singh Sibbia v. State of Punjab, has observed in para 6 as follows:

The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.

R/CR.MA/5226/2023 ORDER DATED: 24/04/2023

Thus an order of anticipatory bail would have a relevancy to the moment of arrest of the concerned person. Consequently this Court would have jurisdiction if a person is likely to be, arrested at a place within, the jurisdiction of this Court. We may with advantage refer to a few decisions of the other High Courts which have taken a similar view. For example, Karnataka High Court in the case of Dr. L. R. Naidu v. State of Karnataka reported in 1984 Cri LJ 757, and the Calcutta High Court in the case of B. R. Sinha v. State reported in 1982 Cri LJ 61, have taken a view similar to the one which we have taken.

There is also a decision of the Delhi High Court on the same lines. It would thus be clear that this Court would have jurisdiction to entertain both the applications even if the offences are said to have been committed outside the State of Maharashtra."

4. Having regard to the discussion of the Hon'ble Division Bench of the Bombay High Court referred to herein-above, and further considering the legal proposition that if for an offence of the like nature which had been committed within the State of Gujarat, this Court being competent to decide the application and being competent to grant anticipatory bail to the said applicant, in the considered opinion of this Court, it would also be competent for this Court to grant transit anticipatory bail in favour of the applicant where there is FIR filed against the applicant in a State other then the State of Gujarat and whereas the applicant has only projected reasonable apprehension of his arrest before this Court.

5. Heard learned counsel appearing for the applicant and learned Additional Public Prosecutor for the respondent - State and perused the documents on record.

6. This Court has considered following aspects,

R/CR.MA/5226/2023 ORDER DATED: 24/04/2023

(i) Prima-facie, it seems that the dispute arisen out of business transaction and there is no record to indicate any civil remedy was exhausted by the applicant and straightway criminal complaint is filed.

7. Having gone through the materials on record and averments made in the application, I am of the view that the following order would meet the ends of justice:

(a) the applicant shall not be arrested for a period of two weeks from today within the State of Gujarat in connection with the complaint No.19 of 2022 filed before Dindigul DCB Police Station, District Dindigul, Tamilnadu.

(b) the applicant may approach the competent court within whose territorial jurisdiction the offence is alleged to have been committed for the purpose of obtaining anticipatory bail / quashing application in connection with the aforesaid offence and this order shall remain in force for a period of two weeks from today.

(c) It is made clear that if the applicant fails to obtain the necessary relief before the appropriate forum in accordance with law within the time stipulated above, the transit bail granted by this Court shall stand cancelled automatically.

8. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(NIRZAR S. DESAI,J) F.S. KAZI.....