Gujarat High Court
Prakash Dwarkadash Kapadia vs State Of Gujarat on 23 November, 2023
NEUTRAL CITATION
R/CR.MA/20953/2023 ORDER DATED: 23/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR TRANSIT BAIL) NO. 20953 of
2023
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PRAKASH DWARKADASH KAPADIA
Versus
STATE OF GUJARAT
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Appearance:
MS P.J.JOSHI(3888) for the Applicant(s) No. 1
MR UTKARSH SHARMA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 23/11/2023
ORAL ORDER
1. RULE returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent - State.
2. The present application has been preferred under Section
438 of the Code of Criminal Procedure, 1973, praying for transit
bail in connection with the First Information Report being No.I-
CR No.0289/2023 registered with the Pratapnagar Police
Station, District Udaipur, Rajasthan, on 10.4.2023 for the
offence punishable under Section 420 of the Indian Penal Code.
3. As the applicant is apprehending his arrest in connection
with the above complaint filed by the complainant, he has
prayed for temporary protection.
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R/CR.MA/20953/2023 ORDER DATED: 23/11/2023
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4. At this stage, it needs to be reiterated that the law with
regard to apprehending arrest in 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 against 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 is 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 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
NEUTRAL CITATION
R/CR.MA/20953/2023 ORDER DATED: 23/11/2023
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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.
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 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 than the State of Gujarat and whereas the applicant has
NEUTRAL CITATION
R/CR.MA/20953/2023 ORDER DATED: 23/11/2023
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only projected reasonable apprehension of his arrest before this
Court.
5. Heard learned advocate appearing for the applicant and
learned APP for the respondent-State and perused the
documents on record.
6. This Court has taken into consideration the fact that the
dispute has arisen out of personal relations and straightway the
criminal complaint has been 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 Rajasthan in
connection with the First Information Report being No.I-CR
No.0289/2023 registered with the Pratapnagar Police
Station, District Udaipur, Rajasthan, on 10.4.2023 for the
offence punishable under Section 420 of the Indian Penal
Code.
(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.
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R/CR.MA/20953/2023 ORDER DATED: 23/11/2023
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(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 made absolute to the aforesaid extent. Direct service
is permitted.
(VIMAL K. VYAS, J.)
/MOINUDDIN
