Dhrupesh Jayanthibhai Patel vs State Of Gujarat
2023 Latest Caselaw 720 Guj

   R/CR.MA/1832/2023                                  ORDER DATED: 30/01/2023




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL MISC.APPLICATION NO. 1832 of 2023
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                       DHRUPESH JAYANTHIBHAI PATEL
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR AMIT D SHAH(11232) for the Applicant(s) No. 1
MS KHUSHBU R SHAH(11864) for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                               Date : 30/01/2023
                                ORAL ORDER

1. The present application is filed by the applicant to get anticipatory bail under section 438 of the Criminal Procedure Code, 1860 (IPC) in connection with the First Information Report registered vide C.R.No.I-11210015230003 of 2023 at D.C.B. Police Station, Surat City for the offences punishable under sections 65(a), 65(e), 81, 83 and 98(2) Gujarat Prohibition Act.

2. The case of the prosecution is that the accused person named in the FIR, with an intention to sell different brand of foreign made liquor i.e. Whisky for an amount of Rs.02,30,400/- along with two mobiles, cash amount of Rs.20,000/-, have been arrested on the spot. Out of them, some of the accused persons are absconding. With these sorts of allegations, FIR Came to be filed against the present applicant and other accused.

R/CR.MA/1832/2023 ORDER DATED: 30/01/2023

3. Learned Advocate appearing for the applicant submitted that in the FIR, there is no whisper about the role of applicant in committing offence. He has further submitted that there is no specific role of present applicant. It is further submitted that the IO has filed an affidavit, wherein, no specific role of the present applicant is attributed.

4. Learned APP has strongly objected the present anticipatory bail application. He submitted that the applicant's name is already disclosed in the FIR. He played pro vital role in commission of the offence. He therefore submitted that looking to the gravity of the offence, the applicant may not be enlarged on anticipatory bail.

5. 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), the 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

R/CR.MA/1832/2023 ORDER DATED: 30/01/2023

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 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."

6. In case of Prahlad Singh Bhati versus N.C.T. Delhi and another reported in 2001 AIR SCW 1263, has observed as under in para 8 of the report :

"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

R/CR.MA/1832/2023 ORDER DATED: 30/01/2023

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 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."

7. Having heard the learned advocate for the parties and perusing the investigating papers and as well as taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused and considering the law which has been laid down by the apex court and considering the averments made in the complaint filed by the original complainant and after considering the observations made by the learned sessions judge 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 for anticipatory bail. Therefore, this application is required to be

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rejected.

8. Before parting with this judgment, it is hereby clarified that the aforesaid observations made in this order have been made for the purpose of considering the present application for anticipatory bail. Therefore, same shall not come in the way of the trial court for considering the application that may be filed by the applicant for regular bail or at the time of trial and the trial court concerned shall not be influenced by the observations made hereinabove.

9. In the result, this application is rejected. Interim relief, if any, stands vacated. Rule Stands discharged.

(SAMIR J. DAVE,J) VISHAL MISHRA