Gujarat High Court
Mahendrabhai Ghemarbhai Patel vs State Of Gujarat on 18 January, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 22797
of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MAHENDRABHAI GHEMARBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR BHADRISH RAJU for MR SHAHIL A SARWANI(8432) for the Petitioner 1
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 18/01/2024
CAV ORDER
1. By way of the present petition under Section 438 of the
Code of Criminal Procedure, 1973, the petitioner has prayed to
release him on anticipatory bail in case of his arrest in
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connection with the FIR being No.11195034230811 of 2023
registered with Palanpur East Police Station for the offences
punishable u/s 304, 427, 114 of the IPC.
2. Brief facts of the case are as under:-
2.1 That the construction work of bridge was going on the
railway line which is passing from Palanpur Old RTO Circle to
Ambaji road the work of the new bridge is allotted and done by
the Company namely GPC Infrastructure Ltd (in short "the
Company").
2.2 That the directors of the the Company are 1. Ganeshbhai
Parthibhai Chaudhary, 2 Parth Ganeshbhal Chaudhary, 3.
Daljibhai Parthibhai Chaudhary, 4. Mahendra Ghemarbhai
Chaudhary, (appears that the name has been incorrectly
mentioned in the FIR, the correct name is Mahendra
Ghemarbhai Patel), 5. Vipulbhal Daljibhai Chaudhary, 6.
Doliben Ganeshbhai Chaudhary, 7. Takhiben Daljibhai
Chaudhary as well as 8. Jalmaram Vanzara was the testing
engineer, 9. Sanibhal Mewada and 10. Hardik Parmar and 11.
Naman Mewada were the site engineer appointed by the the
Company at the construction of bridge.
2.3 That the other persons who were found negligent in the
supervision of the construction work of the bridge and for the
work approach of girders (beam) placed on the bridge is in
progress, as it fell on road due to the negligence two person have
been died by not keeping barricades as well as traffic marshal
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under the bridge where construction work was going on and
despite knowing that by keeping negligence in work may result
in the death of someone.
2.4 That the complainant is a deputy executive engineer
serving in National Highway Division, posted at Idar District
Sabarkantha. It is further alleged that on 23.10.2023 the
complainant was on leave during which approximately around
03:00 PM his friend Mr. SM.Patel who is posted as deputy
executive engineer informed the complainant on the call that the
bridge which built on the railway line near to Palanpur Old RTO
Circle to Ambaji has been damaged, On which complainant
called the petitioner herein for taking information, that on call he
revert that today approximately in between 2.00 PM to 03:00 PM
approach girder topple/fallen and the incident was occurred, on
which complainant informed his superior officer who is executive
engineer at Ahmedabad in National Highway Division namely
Sirishkumar A Sinh about the incident and in evening hours
complainant came to Palanpur where the officers of the
committee which was constitute by the state government in
regards to the topple of the approach girder were present and
along with them the complainant went to the place of incident,
on the way of Palanpur Old RTO Circle to Ambaji on National
Highway Road No. 58 from the railway line north towards on the
bridge over the DP. 11 to R.P 03 where Six horizontal girders
(beams) were found to be toppled down and particles of the
cement concrete of the said girders (beams) were lying on the
spot as well as a tractor and a rickshaw were crushed in it and it
seems that some damage was caused to them and in the said
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incident due to topple of girders of the bridge girders two persons
(1) Mayurbhai Mohanbhai Chandrethia and (2) Ajay Khodidas
Shrimali died due to topple/fallen of girders on them.
2.5 That construction of the new bridge being ROB with
Approaches in lieu of LC no.165, of Ahmedabad-Palanpur (IR
Ch-650/2-3) between Rly station - Karjoda & Palanpur NH-58 on
EPC mode under NH(O) In the state of Gujarat. (Job No.0 58-GJ-
2020-21-635) site work was allotted to the Company by
approving Tender No. 1D-2020 Mo RTH_581300_1 on
Rs.89,14,13,300/ and the directors of the said Company are (1)
Ganeshbhai Parthibhai Chaudhary (2) Parth Ganeshbhai
Chaudhary (3) Daljibhai Parthibhai Chaudhary (4)
Mahendrabhai Ghemarbhai Chaudhary (5) Vipulbhai Daljibhai
Chaudhary (6) Doliben Ganeshbhai Chaudhary (7) Takhiben
Daljibhai Chaudhary. therefore the work of constructing the
bridge was of the Company and Mahendrabhai Ghemarbhai
Patel who is the director of the Company was appointed as site
incharge engineer for the said work by the Company. It is further
alleged that the Company has appointed the following engineers
for the purpose of the construction of the said bridge in which
person namely Jalmaram Vanjara was appointed as testing
engineer as well as person namely Sanibhai Mewada, Hardik
Parmar and Naman Mewada were appointed as site engineer for
the construction of this bridge and it is there responsibility of
supervision during the construction of the bridge and those
engineers formed their own team to carry out the site work.
That responsibility of proof checking as well as supervision and
quality control of the work of the said over bridge was given to
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MCWAY MANAGEMENT LTD Gandhinagar.
2.6 That according to the information received by the
complainant regarding the Incident, the primary view of the
complainant is that the while the work was in progress at that
time approach girder toppled/falls down and barricading is
necessary in this type of work as well as the signs boards should
be there informing that the work is in progress and the Company
should appoint traffic marshal at the site so no one can enters at
the place of construction of bridge which the same is not found
during the visit of the complainant.
2.7 That Company who have been allotted the construction of
the said bridge as well as the directors of the Company and the
employee namely Jalmaram Vanzara was appointed as testing
engineer as well as the employee namely Sanibhai Mevada,
Hardik Parmar and Naman Mevada were appointed as site
engineers by the Company for the construction of the bridge. It
is further alleged that due to negligent in the supervision of the
construction work of the bridge as well as they were aware of the
fact that the girders works was going on and they are knowing
that in case due to negligence if the girder topple/falls down one
can die despite of the same in negligence by not keeping
barricads and traffic marshals under the girders placed on the
bridge two person were died due to topple of the girders of the
bridge which shows criminal negligence and have committed
criminal homicide.
2.8 That the government has formed a separate team to find
out the exact cause of this incident in which team one will check
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the Quality as well as another team will verify the Construction
Design and the third team is Gujarat Engineering Research
Institute (hereinafter referred as "GERI") which is currently
conducting preliminary investigation. It is further alleged that it
is the complaint against all the persons or agencies who are
found responsible or negligent and against all the accused who
are found responsible during the investigation or at the end of
the investigation. Therefore, the impugned FIR is registered.
The petitioner is apprehending arrest in the said offence and
hence, present petition.
3. Heard learned advocate Mr. Bhadrish Raju with learned
advocate Mr.Shahil Sarwani for the petitioners and learned APP
Mr. HK Patel.
3.1
Learned advocate Mr. Raju would submit that the
petitioner is innocent and he has been falsely implicated in the
offence on the ground that he is the Director of the company. He
would further submit that the petitioner has not played any
active role in commission of the offence nor has he vicariously
liable for the act of falling of girders while the bridge was under
construction.
3.2 Taking this Court to the FIR, learned advocate Mr. Raju
would further submit that according to the case of prosecution,
the petitioner was required to put barricades and traffic
marshals, as the construction of the bridge was undergoing in
the middle of the city. He would further submit that the
petitioner has performed his duty, the barricades were in view of
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the fact that on both the sides of the proposed construction site,
housing societies are situated , which entails the traffic
everyday. Insofar as traffic marshals is concerned, he would
submit that in view of the statement recorded during
investigation, it comes on record that several and sufficient
traffic marshals were deputed. Thus, in nutsehll, it is argued
that there is no negligency on the part of the petitioner, which
can attract the offence punishable u/s 304 of the IPC.
3.3 Learned advocate Mr. Raju would further submit that
there is no culpable negligency on the part of the present
petitioner, as he is not directly or indirectly involved in the
incident. He would further submit that even bare reading of the
FIR would not indicate any act attributed to the petitioner
connected with falling of girders placed as far as possible At the
most, falling of girders during the construction can be
considered as an accident and it cannot be expected and cannot
be attributed that the petitioner has played active role in act of
falling of girders, which resulted into death of two persons.
3.4 Learned advocate Mr. Raju would further submit that the
allegations are levelled against the petitioner only on the ground
that the petitioner is holding designation of Incharge of project or
Project Director. Apart from that, there are no other allegations
of offence punishable u/s 304 of the IPC levelled against the
petitioner. He would further submit that there is no allegations
of hazardous danger, which caused injury or death has been
levelled against the petitioner. There is no intention on the part
of the petitioner to cause death nor any knowledge that girders
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will fall and would cause death of the deceased. He would
further submit that there is no criminality running against the
petitioner and there is no allegation that the petitioner was
culpable neglect or had not exercised reasonable and proper care
to prevent the accident. He would further submit that there are
various government agencies also involved in keeping the
barricades and traffic marshals, however, none of them are
arraigned as accused. He would further submit that the
petitioner and his company has informed all government
authorities about the construction of the project going on and
inherent danger of accident lying in the same. He would further
submit that the company is not fly by the operator. It is well
established construction company and it has successfully
carried many multiple projects including constructing projects
across the State of Gujarat and thus, the incident can be
considered as accident and nothing more.
3.5 Learned advocate Mr. Raju would further submit that there
is allegation of committing culpable homicide amounting to
murder prima facie not proved against the petitioner. Taking
this Court through various photographs produced along with the
compilation, he would further submit that even diversion of the
road is also placed there to avert the accident. He would further
submit that in nutshell, the petitioner has taken due and
sufficient care to avert the accident, but it is unfortunate that
due to falling of girders, two persons have lost their life.
3.6 Upon filing the affidavit of the petitioner, learned advocate
Mr. Raju would submit that the petitioner has full sympathy to
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the family of the deceased and without admitting and accepting
liability, without accepting any wrong doing and without
expecting any concession, the petitioner is ready and willing to
provide some financial help to the family members of the
deceased and the petitioner is also willing to deposit Rs.25 lakh
each for the victims of the deceased. He would further submit
that even to show his bona fide, the petitioner has already issued
two cheques of Rs.25 lakh each as compensation in favour of the
father of the both the deceased. Thus, he would submit that the
petitioner is innocent, no overt act is attributed to the petitioner.
He would further submit that no case of custodial interrogation
is made out. The other co-accused are enlarged on regular bail
by the concerned Court, however, after charge sheet. He would
further submit that the petitioner is a high societal dignity and
hold respect and in the event of the petitioner being arrested, the
petitioner would be at stigma.
3.7 It is also argued that the petitioner is ready to join the
investigation, he is also ready to cooperate with the investigating
officer. No flight risk exists as the petitioner have various
movable and immovable properties within Palanpur district.
3.8 To buttress his contention, learned advocate Mr. Raju has
relied upon following decisions.
1. Girishbhai Maganlal Pandya Vs State of Gujarat (2015 SCC
Online Guj 6330)
2. Nitinchandra Somnath Raval Vs State of Gujarat (2019 14
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SCC 676)
3. Ryan Augustine Pinto Vs State of Haryana and Anr. & Dr.
Augustine Francis Pinto Vs CBI (Criminal Misc. Nos.-M-35002-
2017 & Criminal Misc. Nos.-M-35003 of 2017) (Hon'ble Punjab &
Haryana High Court) (Dated 07.10.2017)
4. Barun Chandra Thakur Vs CBI & Ors. (Special Leave to
Appeal (Crl) No. 8044- 8045 of 2017) (Dated 06.11.2017)
(Hon'ble Supreme Court).
5. Ryan Augustine Pinto and Ors. Vs State of Haryana and
Ors. (Criminal Misc. Nos.-35002-2017& Criminal Misc.Nos.-M-
35003 of 2017) (Hon'ble Punjab & Haryana High Court) (Dated
21.11.2017)
6. Barun Chandra Thakur Vs. CBI ((2018) 12 SCC 119)
(Dated 11.12.2017) (Hon'ble Supreme Court)
7. Munneshbhai indrajitlal Choksi Vs State of Gujarat (SCRA
No. 7564 of 2015)
8. Chandubhai Fakirbhai Patel Vs State of Gujarat (CRMA No.
15105 of 2022)
9. Maksud Saiyed Vs State of Gujarat and Others (2008 S
SCC 668)
10. Pankajbhai Bhurabhai Vaishvani Vs State of Gujarat
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(CRMA No. 9121 of 2023)
11. Rakeshkumar Shriramji Prasad Yadav Vs State of Gujarat
(2011 SCC Online Guj 4709)
12. Bharatbhai Parshottambhaibhai Vaghasiya Vs State of
Gujarat (CRMA No. 9690 of 2019)
13. Dhimantbhai Bharatbhai Rajyaguru Vs State of Gujarat
(CRMA No. 5741 of 2019)
3.9 Upon such submissions, learned advocate Mr. Raju
requests to allow this petition.
4. On the other hand, learned APP would submit that
contract is executed between the State and the company and as
per clause 16 of the contract, it was the duty of the contractor to
take all required measures and to make arrangement for the
safety of users during construction and maintenance of the
project highway or part thereof in accordance with the provisions
of the MORTH specifications. He would further submit that
present petitioner is project in-charge and he is directly involved
in all the activities to maintain the safety while work of
construction of bridge was undergoing. He would further submit
that the petitioner is failed in his duty and that is visible as
girders fell during the construction resulting into death of two
persons, which prima facie, attracts the provisions of section 304
of the IPC. He would further submit that considering the role
attributed to the present petitioner, he is main person, as he is a
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Civil Engineer and holding designation of Incharge of project or
Project Director and thus, he is vicariously liable for the act and
omission of the company. He would further submit that as far
as bail granted to the other accused are concerned, those bails
are granted after filing of the charge sheet and they are enlarged
on regular bail and therefore, the petitioner cannot claim parity.
He would further submit that the charge sheet papers reveals
that present petitioner is absconding and in view of such aspect,
the petitioner is not entitled for anticipatory bail, as he is not
cooperating with the investigation nor has joined the
investigation. Thus, he submits to dismiss the petition.
5. Having heard learned advocates for both the parties and on
perusal of the record, at the outset, it is undeniable fact that the
petitioner is the Incharge of project or Project Director of the
construction of bridge undergoing in Palanpur city. It is further
to be noted that the bridge is passing and piercing the Palanpur
city. It is also undeniable aspect that the girders, which was
required to place to construct the bridge, was toppled and fall on
the road, which took two lives of two persons, who were passing
through.
6. It is argued that the petitioner is not negligent in causing
accident. To appreciate this argument, what is required to be
noted that the word "negligency" is not defined in the IPC. It is
difficult to lay down the universal rule for application of
negligency. Though, the term "negligency" has not been defined
in the IPC, it may be stated that negligency is the omission to do
something which a reasonable man, guided upon those
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considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a reasonable and
prudent man would not do. [See: Mahadev Prasad Kaushik Vs.
State of Uttar Pradesh, AIR 2009 SC 125]. The petitioner is the
Director of the company and directly involved in handling the
project of construction of the bridge within heart of Palanpur city
and therefore, he must know the seriousness of the construction
of the bridge undergoing and he has to ensure that no untoward
incident took place. It is an admitted position that unfortunate
incident took place which resulted into death of two persons.
The petitioner could be attributed role or align with incident, as
he is Project Director and responsible for all safety measures. All
that can be prima facie said that the petitioner remains
negligent. He has not paid proper attention on safety measures,
which lead to unfortunate accident. Omission to do what
prudent man can do to apply safety measures in construction of
the bridge in middle of the city, can be attributed to the
petitioner. Laxity on the part of the petitioner is consciously
visible.
7. Further, present petitioner is absconding as per charge
sheet papers and in view of such aspect, the petitioner is not
entitled for anticipatory bail, as he is not cooperating with the
investigation nor has joined the investigation.
8. Clause 16 of the contract where the petitioner is one of the
parties, clearly earmark the responsibility upon the petitioner to
observe the traffic regulations. All the safety measures were
required to be applied in its true perspective to prevent accident.
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The petitioner, who is a Civil Engineer and also in-charge of the
project is owing the duty to see that no mishap took place and
was required to follow the MORTH specifications for observing
safety. The petitioner was knowing the hazardous of the
construction ongoing on the site and danger involved in such
kind of construction. Yet, no proper care has been taken. The
girders toppled and two persons lost their lives. Thus,
involvement of the petitioner in the offence cannot be prima facie
ruled out.
9. Learned advocate Mr. Bhadrish Raju for the petitioner did
not point out any frivolity in the prosecution, he just pressed
upon terms "negligency" and submits that no negligency can be
attributed to the petitioner as it was just an accident. But that
issue can be examined at the timing of framing of charge when
the entire investigation is completed and the material, if any,
against the accused is available before the concerned Court. At
this juncture of deciding pre-arrest bail, it cannot be considered
that no offence u/s 304 of the IPC is made out or there is no pre-
requisite condition for invocation of section 304 of the IPC is
available. What requires to be observed is that whether the
petitioner is able to make out his case within the parameters of
granting or refusal of bail or not.
10. 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.
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"(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
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."
11. At this juncture, I may refer the observations and findings
of the Coordinate Bench of this Court in case of Jaysukhbhai
Odhavjibhai Bhalodia Vs. State of Gujarat rendered in Criminal
Misc. Application No.13253 of 2023 with allied matters, whereby
in the facts of falling bridge, in which the offence u/s 304 of the
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IPC was alleged against the accused, the Coordinate Bench of
this Court, after referring to sections 299, 300, 304 and 304A of
the IPC, observed and held in para 20 and 21 as under:-
"20. It is true that to grant or to refuse bail is a matter of judicial
discretion. But, at the same time, as held by the Hon'ble Supreme
Court in the case of Gudikanti Narasimhulu v. Public Prosecutor,
High Court of AP, reported in 1978 AIR (SC) 429, the vesting of
discretion is the unspoken but inescapable, silent command of
our judicial system, and those who exercise it will remember that
discretion, when applied to a court of justice, means sound
discretion guided by law. It must be governed by rule, not by
humor; it must not be arbitrary, vague and fanciful, but legal and
regular. The Court must not yield to spasmodic sentiment to
unregulated benevolence. Thus, the discretion means sound
discretion guided by law. It must be governed by rule and it must
not be arbitrary, vague and fanciful but legal and regular and in
the case of granting bail the judicial discretion of Judge must be
exercised not in opposition to, but in accordance with the
established principle of law.
21. At this stage, I would like to refer to the decision of the
Hon'ble Apex Court in the case of Rajesh Ranjan Yadav @ Pappu
Yadav Vs. CBI Through its Director, reported in (2007) 1 SCC 70,
wherein, the Hon'ble Apex Court has laid down that, while
considering an application for regular bail, the Courts shall have
to take into consideration, the following aspects:
(a) The nature of accusation and the severity of punishment in
case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant;
(c) Prima facie satisfaction of the court in support of the charge;
21.1.The Hon'ble Apex Court, further, observed in paragraphs 10
and 16 thus;
"10. In our opinion none of the aforesaid decisions can be
said to have laid down any absolute and unconditional rule
about when bail should be granted by the Court and when it
should not. It all depends on the facts and circumstances of
each case and it cannot be said there is any absolute rule
that because a long period of imprisonment has expired bail
must necessarily be granted.
16. We are of the opinion that while it is true that Article 21
is of great importance because it enshrines the fundamental
right to individual liberty, but at the same time a balance
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has to be struck between the right to individual liberty and
the interest of society. No right can be absolute, and
reasonable restrictions can be placed on them. While it is
true that one of the considerations in deciding whether to
grant bail to an accused or not is whether he has been in jail
for a long time, the Court has also to take into consideration
other facts and circumstances, such as the interest of the
society."
12. Learned advocate Mr. Raju for the petitioner submitted
that other accused are enlarged on regular bail. However, that
cannot be considered at this juncture, as they are enlarged on
regular bail after filing of the charge sheet. Whereas, the present
petitioner is not available for investigation nor he has joined the
investigation and therefore, investigation qua him is not
completed yet.
13. Learned advocate Mr. Raju would further submit that that
the petitioner has full sympathy to the victims of the deceased
and for that, he has given cheque of Rs.25 lakh each to the
father of the victims. This submission, though he has not
pressed for consideration, it can never be considered as
consideration for grant of pre-arrest bail.
14. Ordinarily, arrest is a part of the procedure of the
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
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petitioner fleeing from justice and other factors to decide whether
it is a fit case for grant of anticipatory bail.
15. 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."
16. Keeping in mind the law laid down by the Hon'ble Supreme
Court in the case of (i) State Rep. by the CBI V/s Anil Sharma
reported in 1997 (7) SCC 187, (ii) Adri Dharan Das V/s State of
W.B. reported in 2005 (4) SCC 303 (iii) P. Chidambaram V/s
Directorate of Enforcement reported in AIR 2019 SC 4198,
wherein the Hon'ble Supreme Court has held held as follows:
"The legislative intent behind the introduction of Section 438
CrPC is to safeguard the individual's personal liberty and to
protect him from the possibility of being humiliated and from
being subjected to unnecessary police custody. However, the
court must also keep in view that a criminal offence is not
just an offence against an individual rather the larger societal
interest is at stake. Therefore, a delicate balance is required
to be established between the two rights - safeguarding the
personal liberty of an individual and the societal interest.
Ordinarily, arrest is a part of procedure of the investigation to
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secure not only the presence of the accused but several other
purposes. There may be circumstances in which the accused
may provide information leading to discovery of material facts
and relevant information. Grant of anticipatory bail may
hamper the investigation. It may frustrate the investigating
agency in interrogating the accused and in collecting the
useful information and also materials which might have been
concealed. Success in such interrogation would elude if the
accused knows that he is protected by the order of the court.
Grant of anticipatory bail, particularly in economic offences
would definitely hamper the effective investigation. Pre-arrest
bail is to strike a balance between the individual's right to
personal freedom and the right of the investigating agency to
interrogate the accused as to the material so far collected and
to collect more information which may lead to recovery of
relevant information. In this view, it cannot be said that
refusal to grant anticipatory bail would amount to denial of
the rights conferred upon the appellant/applicant under
Article 21 of the Constitution of India.
Consequently, power under Section 438 CrPC being an
extraordinary remedy, has to be exercised sparingly; more so,
in cases of economic offences. Economic offences stand as a
different class as they affect the economic fabric of the
society. The privilege of the pre-arrest bail should be granted
only in exceptional cases. The judicial discretion conferred
upon the court has to be properly exercised after application
of mind as to the nature and gravity of the accusation;
possibility of the applicant fleeing justice and other factors to
decide whether it is a fit case for grant of anticipatory bail.
Grant of anticipatory bail to some extent interferes in the
sphere of investigation of an offence and hence, the court
must be circumspect while exercising such power for grant of
anticipatory bail. Section 438 CrPC is to be invoked only in
exceptional cases where the case alleged is frivolous or
groundless. Anticipatory bail is to be granted as a matter of
rule and it has to be granted only when the court is convinced
that exceptional circumstances exist to resort to that
extraordinary remedy".
Having regard to nature of allegations and stage of
investigations, held investigating agency must be given
sufficient freedom in process of investigation. Appellant not
entitled to anticipatory bail as the same would hamper the
investigation".
17. As far as judgments relied upon by the learned advocate
for the petitioner is concerned, they are on different facts and
footings and therefore, that judgments would not render any
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help to the petitioner.
18. For the foregoing reasons, the petition fails and stands
dismissed.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
