Gujarat High Court
Choudhury Ambika Prasad Das S/O ... vs State Of Gujarat on 15 January, 2024
NEUTRAL CITATION
R/CR.MA/998/2024 ORDER DATED: 15/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 998
of 2024
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CHOUDHURY AMBIKA PRASAD DAS S/O DIGAMBAR DAS
Versus
STATE OF GUJARAT
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Appearance:
MR ANSHUMAN TRIPATHY for MR DHRUV K DAVE(6928) for the
Applicant(s) No. 1
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 15/01/2024
ORAL ORDER
1. By way of the present petition under Section 438 of the
Code of Criminal Procedure, 1973, the petitioners have prayed
to release him on anticipatory bail in case of his arrest in
connection with the FIR registered as C.R.No.11216011230403
of 2023 registered with Infocity Police Station, Gandhinagar for
the offences punishable u/s 465, 467, 468, 474 of the IPC and
u/s 66 of the IT Act.
2. Learned advocate for the petitioners submits that
considering the nature of allegations, role attributed to the
petitioner, the petitioner may be enlarged on anticipatory bail by
imposing suitable conditions. He would further submit that the
petitioner is innocent and has not forged any document nor
produced the same as genuine before any authority with a
valuable security as expression defined in section 30 of the IPC.
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Therefore, prima facie offences punishable u/s 465, 467, 468,
474 of the IPC are not made out. He would further submit that
the petitioner is not a beneficiary of any forged documents and
he is acting on behalf of father of Ms. Ayushi Das, as father of
Ms. Ayushi Das has forwarded the documents to the petitioner
and in turn, the petitioner has forwarded to the University.
Therefore, it is submitted that forged documents are not
prepared by the petitioner, as alleged. He would further submit
that the petitioner will cooperative with the investigation, as and
when presence of the applicant is required and therefore, no
custodial interrogation of the petitioner is required. In support
of his submission, he has pressed into service decision of the
Hon'ble Apex Court in case of Bhausaheb Kalu Patil Vs. State of
Maharashtra reported in (1980) 4 SCC 552. Upon such
submissions, he submits to allow this petition.
3. Learned Additional Public Prosecutor appearing on behalf
of the respondent-State has opposed grant of anticipatory bail
looking to the nature and gravity of the offence. He would
further submit that the petitioner played active role in
commission of the offence. The petitioner is an I.T. consultant
by profession and he has prepared all the alleged documents and
sent it to the NIFT, Gandhinagar for claiming that Ms. Ayushi
Das is a bright student. Therefore, it is submitted that prima
facie case is made out and custodial interrogation is required
and thus, he prays to dismiss present petition.
4. Having heard the learned Advocates for the respective
parties and on perusal of the papers, at the outset, what appears
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that the present petitioner has sent email to the NIFT,
Gandhinagar claiming many things about Ms. Ayushi Das, so as
to create sympathy in her favour. Along with the email, the
petitioner has sent certificate of excellence so also photo of
trophies etc. These documents are forged and fabricated as per
FIR and prosecution case. These are principally created to obtain
sympathy for Ms. Ayushi Das. This has been done with the
prestigious institute, namely, NIFT, Gandhinagar. The motive is
prima facie appears to be oblique. The petitioner has not
explained for what reason, he has prepared such documents to
favour Ms. Ayushi Das. Thus, prima facie, it appears to be a
case of custodial interrogation. It is evident that the petitioner
has forwarded the email containing forged documents. The
purpose behind such is required to be illustrated, that can be
done only through custodial interrogation.
5. In case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat
reported in AIR 2015 SC 3090, the Hon'ble Apex Court
delineated the following factors and parameters that needs to be
taken into consideration while dealing with the anticipatory bail.
"(a) The nature and gravity of the accusation and the exact role of
the accused must be properly comprehended before arrest is
made;
(b) The antecedents of the applicant including the fact as to
whether the accused has previously undergone imprisonment on
conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused's likelihood to repeat similar or
other offences;
(e) Where the accusations have been made only with the object of
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injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against
the accused very carefully. The court must also clearly
comprehend the exact role of the accused in the case. The cases
in which the accused is implicated with the help of Sections 34
and 149 of the Penal Code, 1860 the court should consider with
even greater care and caution, because over implication in the
cases is a matter of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a
balance has to be struck between two factors, namely, no
prejudice should be caused to free, fair and full investigation, and
there should be prevention of harassment, humiliation and
unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant;
(j) Frivolity in prosecution should always be considered and it is
only the element of genuineness that shall have to be considered
in the matter of grant of bail and in the event of there being some
doubt as to the genuineness of the prosecution, in the normal
course of events, the accused in entitled to an order of bail."
6. While striking the balance between two factors, namely, no
prejudice should be caused to free, fair and full investigation,
and there should be prevention of harassment, humiliation and
unjustified detention of the accused. the former one weighed
more. The allegations levelled in thd FIR called for free, fair and
full investigation, which can be done through the custodial
interrogation. The petitioner has failed to point out that
accusation have been made only with a view to object of injury or
humiliating the petitioner by arresting him.
7. Ordinarily, arrest is a part of the procedure of the
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investigation to secure not only the presence of the accused, but
several other purposes. Power u/s 438 of the Code is an
extraordinary power and the same has to be exercise sparingly in
appropriate and fit case. This privilege should be extended only
in exceptional cases. It is a judicial discretion conferred upon the
court, and it is to be properly exercised after application of mind
as to the nature and gravity of the accusation, possibility of the
applicant fleeing from justice and other factors to decide whether
it is a fit case for grant of anticipatory bail.
8. In case of Pratibha Manchanda and another Vs. State of
Haryana and another reported in (2023) 8 SCC 181, the Hon'ble
Apex Court in para 21, observed as under:-
"21. 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 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 binvestigation. The court's discretion
in weighing these interests in the facts and circumstances of each individual
case becomes crucial to ensure a just outcome."
9. As far as judgment relied upon by the petitioner in case of
Bhausaheb Kalu Patil (supra) is concerned, the Hon'ble Apex
Court held that if certificate is forged to get the admission in
college, it is not valuable security within the meaning of sections
30 and 467 of the IPC. This finding has been rendered after trial
has been over, conviction was recorded and reached upto the
Hon'ble Apex Court. At this juncture, for grant or refusal of
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anticipatory bail, the ratio laid down by the Hon'ble Apex Court
is not helpful to the petitioner.
10. For the foregoing reasons, present petition fails and stands
dismissed.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
