Gujarat High Court

Chintu Patel @ Rana vs State Of Gujarat on 9 January, 2023

Bench: Samir J. Dave

     R/CR.MA/459/2023                                 ORDER DATED: 09/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 459 of 2023
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                              CHINTU PATEL @ RANA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR.SANAT B PANDYA(6976) for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                Date : 09/01/2023
                                 ORAL ORDER

1. Rule, returnable forthwith. Learned APP waives service

of notice of Rule on behalf of respondent-State.

2. By way of the present application under Section 438 of

the Code of Criminal Procedure, 1973, the applicant

accused has prayed to release him on anticipatory bail in

case of his arrest in connection with the

F.I.R.No.11204067210664 of 2021 registered with

Sevaliya Police Station, District Kheda for the

offenses punishable under Sections 65(a), 65(e), 116-B,

81, 83 and 98(2) of the Prohibition Act.

3. Learned advocate for the applicant submitted that the

R/CR.MA/459/2023 ORDER DATED: 09/01/2023

nature of allegations made in the FIR are such for which

custodial interrogation at this stage is not necessary.

Besides, the applicant is available during the course of

investigation and will not flee from justice. On a bare

reading of the FIR, ingredients of the alleged offences

qua present applicant are not made out. In view of the

above, the applicant may be granted anticipatory bail by

imposing suitable conditions.

Learned advocate for the applicant further stated

that the applicant is ready and willing to abide by all the

conditions including imposition of conditions with regard

to powers of Investigating Agency to file an application

before the competent Court for his remand. He further

submitted that upon filing of such application by the

Investigating Agency, the right of applicant to oppose

such application on merits may be kept open.

4. Learned Additional Public Prosecutor appearing on

behalf of the respondent-State has opposed grant of

anticipatory bail to the applicant accused looking to the

nature and gravity of the offence. He submitted that the

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applicant accused is involved in the serious offence as

alleged in the FIR and therefore, no lenient view would

be taken in favour of the applicant accused by releasing

him on anticipatory bail. He submitted that if the

applicant accused is released on anticipatory bail, then

he may tamper and hamper the evidences and witnesses

respectively. Ultimately, it was submitted by learned

APP for the respondent-State to reject present

application.

5. I have heard learned advocates appearing for the

respective parties and perused the relevant papers

produced on record as well as considered the role

attributed to the applicant accused in the FIR.

6. From bare reading of the FIR, it clearly transpires that

the present applicant accused has played vital role in the

offence alleged along with other accused persons as the

place where from prohibited liquor has been recovered

is of the ownership of the present applicant accused.

Further, from the order rejecting anticipatory bail

application of the applicant accused by the court below,

R/CR.MA/459/2023 ORDER DATED: 09/01/2023

the same ground with regard to recovery of the

prohibited liquor from the place of the present applicant

accused is mentioned. It is also observed in the order of

the court below that in the present case, investigation is

going on and custodial interrogation is necessary.

7. In case of XXX v/s Arun Kumar C.K & Anr. Reported in

2022 Live Law (SC) 870 (Criminal Appeal No.

1834/2022) petition for Special Leave to Appeal (Crl.)

No.7188/2022), Hon'ble Apex Court has held that:

"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

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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 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."

8. In case of Prahlad Singh Bhati versus N.C.T. Delhi

and another reported in 2001 AIR SCW 1263, the

Hon'ble Apex Court has observed as under in para-8:

"8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purpose of granting the bail, the Legislature has used the words 'reasonable grounds for

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believing" instead of "the evidence" which means the court dealing with grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

9. Therefore, considering the law which has been laid down

by the Hon'ble Apex Court and considering the

averments made in the complaint as well as considering

the observations made by the learned court below

concerned, this court is of the considered view that

custodial interrogation can be one of the grounds to

decline anticipatory bail. However, even if custodial

interrogation is not required or necessitated, by itself,

cannot be a ground to grant anticipatory bail and this is

not the case where the discretion should be exercised in

favour of the applicant accused for anticipatory bail.

10. For the foregoing reasons and from the facts and