Gujarat High Court

Rizvan Mohhamad Safi Moyavala vs State Of Gujarat on 4 January, 2023

Bench: Samir J. Dave

   R/CR.MA/1409/2020                                     ORDER DATED: 04/01/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 1409 of 2020
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                       RIZVAN MOHHAMAD SAFI MOYAVALA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR N. D. NANAVATI, SR. ADVOCATE with MR MANOJ S JOSHI(2961) for
the Applicant(s) No. 1
MS MITA S PANCHAL(530) for the Applicant(s) No. 1
MR R. C. KODEKAR, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                Date : 04/01/2023
                                 ORAL ORDER

1. The present application is filed by the

applicant to get anticipatory bail under

section 438 of the Criminal Procedure Code in

connection with the FIR registered vide C. R.

No.I-05/2019 at CID Crime Vadodara Zone Police

Station, Vadodara for the offences punishable

under sections 420, 465, 467, 468, 471, 120B

and 201 of the IPC and section 12 of the Indian

Passport Act.

2. The case of the prosecution is that accused

no.1 and 2 namely Hasmukhbhai Chaudhari and

Nismben Chaudhari had applied for the US visa

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twice in the year 2017, which came to be

rejected, therefore, both of them applied again

in the year 2019 for getting the aforesaid

visa. That on 06.05.2019 while conducting

interview of the accused nos.1 and 2, it was

found by the interviewing officer that the visa

stamp of UK as well as Schengen was suspicious

and therefore, Investigation was conducted and

it was found that both the visa of the accused

are not genuine and forged one. It is further

alleged that upon quashing such facts both the

accuses stated that after rejection of their US

visa twice in the year 2017, their distant

relative accused no.3 namely Motibhai Chaudhari

assured them that he is knowing one agent who

will get their visa done and for that a sum of

Rs.55 lacs was demanded and such amount was to

be paid after accused nos.1 and 2 were

successful in getting the visa. In this matter

Hasmukhbhai Chaudhary, Nismaben Chaudhary,

Motibhai Chaudhay, Naushad were apprehended and

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other accused viz. Riyaz, Dipaksingh and Vishal

were yet to be apprehended. It is alleged that

during the course of investigation, it has

surfaced that accused Naushad and Rizwan with

Dipak Singh and Vishal together in Mumbai were

gorging the immigration stamps, visa and were

demanding huge money in exchange. It is alleged

that from the possession of Naushad total 159

passport, duplicate aadhar card, debit cards

were recovered. All the accused have conspired

together and for acquiring US visa and

financial gain they had forged the visa of

China, Thailand with immigration stamps of one

of the accused namely Imran Ahmed Patel and one

of the page of the passport was torn. With

these sorts of allegations, FIR Came to be

filed against the present applicant and other

accused.

3. Learned Senior Advocate Mr. N. D. Nanavati

appearing with learned Advocate Ms. Mita S.

Panchal for the applicant submitted that the

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present offence is registered on the basis of

complaint given by the police officer himself

and not by the Assistant Regional Security

Officer (Investigator) at the office of U.S.

Consulate Mumbai. The police has no power to

become complainant and than investigate the

matter. That as per the allegation in the FIR

as alleged as per the say of accused no.1 he

approached the present applicant for getting

visiter visa of US for which amount of Rs. Six

lakhs was fixed which includes the traveling

expenses, hotel accommodation and other

charges. Therefore, it cannot be said that the

applicant has made/ gained any financial

benefits of the entire alleged transaction. The

custodial interrogation is not required as the

documents regarding affixing and forged visa

are recovered form accused nos.1 and 3. He also

submitted that as such there is no direct or

indirect role in the offence is alleged to have

been attributed to the present applicant in

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commission of offence and after the arrest of

Naushad, who is one of the co-accused during

his remand period, all the material is already

seized by the Investigating Agency. Mr.

Nanavati learned senior advocate for the

applicant prayed that present applicant may be

released on anticipatory bail.

4. Learned APP Mr. R. C. Kodekar appearing for the

Respondent-State 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. As per the

averments of FIR, the applicant has changed the

pages from different passport and affixed

forged and fabricated stamped documents. 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.

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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 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

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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 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,

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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