Manavbhai Nirajbhai Rathod vs State Of Gujarat
2023 Latest Caselaw 8191 Guj

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     R/CR.MA/20338/2023                             ORDER DATED: 09/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 20338
                           of 2023

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                          MANAVBHAI NIRAJBHAI RATHOD
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR NR KODEKAR(5020) for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                Date : 09/11/2023

                                 ORAL ORDER

Though called out twice, no one is present for the applicant. Hence, the avermetns made in the application being considered and with the assistance of learned APP, present application is decided.

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-original accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR registered at Sardarnagar Police Station, Ahmedabad, being C.R No.11191040231761 of 2023 for the offences punishable under Sections 65(A)(E), 66(1)

(b), 68, 81, 83, 84, 86, 98(2) and 116-B of the Gujarat Prohibition Act.

2. The applicant has stated in bail application that the applicant been falsely enroped in the offence. The applicant was not present at the scene of offence. Nothing is recovered from the applicant. The allegation levelled against the applicant is only his involvement in the alleged offence. He has relied upon the decision of this Court rendered in Solanki Ravibhai Dipubhai & Ors.Vs. State of Gujarat & Anr. reported in 1992 (1) GLR 631 and stated that when the case is

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made out for bail, the Court has to exercise discretion in favour of the accused. He further submitted that the nature of allegations 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. In view of the above, the applicant may be granted anticipatory bail.

3. Per contra, learned APP has vehemently opposed the application and submitted that the present applicant is involved in the offence. The applicant was selling the liquor and in his premises, liquor was found and recovered. He is having 9 past criminal antecedents. Here in the present case, the applicant was a seller. Considering his previous involvement in similar type of offences and he is out of reach, custodial interrogation of the applicant is required, as there is a possibility of tampering of evidence and evasion of interrogation of the accused. The accused, who is directly connected with the crime and has a history of prior involvement in offenses under the Prohibition Act, which have significantly affected the society, may try to evade interrogation. He, therefore, submits that the application be dismissed.

4. This Court has considered the rival submissions and considered the material placed on record.

5. The criteria to grant anticipatory bail and regular bail has been laid down by the Apex Court in various decisions. While criminal administration of justice disturbed, arrest is a part of investigation. After the arrest of the accused when substantial part of the investigation including remand gets over, then the Court has to exercise jurisdiction considering the evidence collected during investigation. It is needless to say that Section 438 of the Code is pre-arrest bail as there is a part of investigation and importance of the arrest is time and again discussed by the Hon'ble Apex Court.

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When the involvement of the accused is prima facie revealed and if allegation is not levelled that to defame him or to tarnish his image, the Court has to exercise jurisdiction, but to seek anticipatory bail is not an extraordinary jurisdiction and absolute right of the accused.

6. Keeping in mind the aforesaid fact as well as the judgments relied upon by the applicant in the decision of this Court in case of Solanki Ravibhai Dipubhai & Ors. (supra) would not helpful to the case of the applicant. However, it is to be noted that while deciding the bail application, the Court should not blindly rely upon the precedent as held by the Apex Court in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav, reported in (2004 (7) SCC 528, as each case should be decided on its own merits and the Court has to consider the facts of each case and in the instant case, prima facie involvement of the accused is found.

7. Now coming back to the facts of the present case and looking to the material placed on record, it clearly transpires that the muddamal liquor was found from the premises of the applicant. It was also noticed that the applicant has several criminal antecedents and if he is enlarged on bail, there is all possibility to repeat such type of illegal activities. Even otherwise, considering the past antecedents and role of the applicant and he is out of reach, no case is made out to grant bail. The applicant is also involved in similar type of offence earlier and in the instant case, role of the applicant is attributed as a supplier.

8. In this background facts, this Court prima facie is of considered view that, there is a reasonable ground to believe that

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the applicant has committed the alleged offence. Considering the facts of the present case, it cannot be said that the applicant herein has been falsely implicated in the alleged offence. If the anticipatory bail as sought for is granted, then it will affect the investigation of the case. Therefore, custodial interrogation of the applicant is required.

9. The Hon'ble Apex Court in the case of Jai Prakash Singh Vs State of Bihar & Anr. reported in 2012 4 SCC 379, has been pleased to hold as under:-

"Parameters for grant of anticipatory bail in a serious offences are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."

10. The coordinate Bench of this Court in a case of Jigneshkumar Maheshbhai Patel vs State of Gujarat, (Criminal Misc. Application No.3122 of 2018) has observed as under :

"15. This Court, in one of its judgments, in the case of State of Gujarat vs. Desai Jigisbhai @ Rajubhai Nagjibhai, Criminal Misc. Application No.23576 of 2015, decided on 4th February, 2016, observed as under;

"25. When a Court is given a discretion, the statute confers upon it the power to act according to what may appear to be best and appropriate under the circumstances of the particular case. The discretion is not willful or arbitrary, but is regulated by well-known and well established principles. In many circumstances, the Judge has a discretion as to whether, and in what manner, to exercise his powers. Commonly encountered instances of judicial discretion are the discretion as to grant of bail in a non-bailable offence. However, no discretion is absolute and there may be a successful appeal to the Court of Appeal in relation to the exercise of a judicial discretion if the appellant can show that the judge exercised his discretion under a mistake of law, or under a misapprehension as to the facts, or that he took into account irrelevant matters or gave insufficient weight, or too much weight, to certain factors or that he failed to exercise his discretion at all.

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26.In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows :

"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under (SCC p. 124, para 16) :

"If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."

16. The presumption of innocence, by itself, cannot be the sole consideration for grant of bail. The presumption of innocence is one of the considerations, which the court should keep in mind while considering the plea for bail. The salutary rule is to balance the cause of the criminal defendant and the cause of public justice. Over solicitous homage to the criminal defendant's liberty can, sometimes, defeat the cause of public justice. Over a period of time, a feeling seems to exist in some quarters that the object of criminal law is to protect the rights of the accused and that the criminal justicing system is envisioned as a sentinel of the rights of the accused. It is not so. The law is the sentinel of rights of the society and of the individual. The rights of the criminal defendant will be as zealously guarded, as the cause of public justice. Pre-trial detention in itself is not an evil, nor opposed to the basic presumption of innocence. If liberty is to be denied to an accused to ensure maintenance of law and order and public health, then the courts should not hesitate in denying such liberty. Ensuring security and order including public health is a permissible non-punitive objective, which can be achieved by pre-trial detention. Where overwhelming considerations in the nature aforesaid require denial of bail, it has to be denied"

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11. In so far the statement of co-accused is concerned, it provides clues to the investigating agency as to how to investigate the case and thereafter the investigating officer has to collect evidence against the person who has been named as the accused. In the light of the above provisions, there is no bar on considering the statement of co-accused for investigation purposes. At this stage, it is relevant to note that this Court has observed in the case of Mohmed Salim abdul Rasid Shaikh v. State of Gujarat, reported in 2001(2) GLR 1580, in para 12, as under:

"...It is pertinent to note that the prosecution case rests mainly on circumstantial evidence and police has received a clue against the present applicant from the statement of co-accused, already arrested. Irrespective of the fact that statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation..."

12. Further, in the case of Mohammed Fasrin v. State Rep. By the Intelligence Officer, rendered in Criminal Misc. Application No.296 of 2014, the Hon'ble Supreme Court observed as under:

".......The confessions of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co-accused....."

13. It is appropriate to refer to the judgment of the Apex Court rendered in case of Pratibha Manchand Vs. State of Haryana, reported in AIR 2023 SC 3307, wherein the Apex Court has observed thus:-

"19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and

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presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."

In view of the above decision and in view of the facts and circumstances of this case, custodial interrogation of not only the applicant, but all other suspect/s is therefore imperative to unearth the truth. Hence, this is a not a fit case to exercise the jurisdiction in favour of the applicant.

14. For the foregoing reasons and considering the law laid down in the above cited decisions of this Court as well as the Hon'ble Apex Court, this Court is of view that it is not a fit case to exercise the discretion under Section 438 of the Code in favour of the applicant. Accordingly, present application does not deserve any consideration and is hereby dismissed. It is made clear that this Court has not delve into the merits of the matter and the views expressed in the order are prima facie only.

(HASMUKH D. SUTHAR,J)

SUCHIT