Gujarat High Court
Rohit Hemantbhai Chandarala vs State Of Gujarat on 30 January, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 20662 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ROHIT HEMANTBHAI CHANDARALA
Versus
STATE OF GUJARAT
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Appearance:
H P BAXI(9459) for the Applicant(s) No. 1
SHIVANI R MODI(9280) for the Applicant(s) No. 1
MR PRATIK Y JASANI(5325) for the Respondent(s) No. 1
MR. DHAWAN JAYSWAL, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 30/01/2024
CAV JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent-State.
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2. The present application is filed under Section 439 of the
Code of Criminal Procedure, 1973, for regular bail in
connection with the FIR being C.R. No.11208051230663 of
2023 registered with the Rajkot City 'B' Division Police Station,
Rajkot City of the offence punishable under Sections 406, 420,
120(b), 504 and 506(2) of the IPC.
3. Learned advocate Mr. H.P. Baxi appearing for the
applicant has submitted that the applicant-accused was
arrested on 14.08.2023 and since then he is in jail. Learned
advocate Mr. Baxi has also submitted that the investigation
has already been completed and charge-sheet has also been
filed. It is submitted that as per the case of the prosecution, at
the instance of the applicant-accused, the complainant has
deposited an amount of Rs.1,00,0000/- in the account of the
accused No.2-Dhavni International of Vijay Kumar Totamal
Maglani for investment purpose. Thereafter, again as per the
say of the applicant-accused, the complainant has deposited
Rs.50,00,000/- in the account of the accused No.3- Balaji Exim
run by Mahendrabhai Dharamshibhai Kagathra. It is alleged
that the complainant had invested the said amount upon
assurance being given by the applicant-accused that he will
get profit from the said investments. Learned advocate Mr.
Baxi has submitted that the present applicant-accused has not
entered into any transaction with the complainant. The
alleged transactions took place between the complainant and
the accused Nos.2 and 3 and the present applicant-accused
has nothing to do with the same. The amounts were not
deposited in the account of the applicant-accused. Learned
advocate Mr. Baxi has submitted that all the offences, as
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alleged, are exclusively triable by the court of Magistrate.
Learned advocate Mr. Baxi has further submitted that the
accused Nos.2 and 3 in whose account the complainant has
deposited the amount, have already been enlarged on bail by
this Court. Therefore, considering the principle of law of parity
also, the present bail application of the applicant may be
entertained. Learned advocate Mr. Baxi has also submitted
that at the time of considering the bail application of the co-
accused, arguments were canvassed that the amounts which
were deposited in their accounts, were subsequently
transferred in the account of the accused No.1 and they have
not used or utilized a single penny from the said amount
deposited by the complainant. In this regard, learned
advocate Mr. Baxi has submitted that the applicant-accused
and the accused Nos.2 and 3 were having business
relationship, and on account of such business relationship,
number of business transactions took place between them
and, therefore, solely on the basis of the statement of the co-
accused that the amount deposited by the complainant in their
account were transferred to the account of the applicant, it
cannot be said that the applicant-accused has duped the
complainant. Learned advocate Mr. Baxi has submitted that
the alleged incident took place in the year 2018-2019 whereas
the first information report has been lodged in the year 2023
and, therefore, there is a huge unexplained delay in registering
the complaint. Learned advocate Mr. Baxi, in support of his
submissions, has put reliance upon the following decisions;
i) In the case of Sanjay Chandra vs. Central Bureau of
Investigation, reported in LAWS (SC) 2011 1137;
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ii) In the case of Bhagirathsinh Jadeja vs. State of Gujarat,
reported in LAWS (SC) 1983 1116;
iii) A decision of this Court in the case of Afroz Mohd. Hasan
Fatta vs. State of Gujarat, reported in LAWS (GJH) 2015 35;
iv) In the case of Arnesh Kumar vs. State of Bihar, reported
in LAWS (SC) 2014 77;
4. In such circumstances, referred to above, learned
advocate Mr. Baxi prays that there being merit in his
application, the same be allowed and the applicant-accused be
released on bail.
5. The learned APP appearing on behalf of the respondent-
State has opposed grant of regular bail looking to the nature
and gravity of the offence. Learned APP appearing for the
applicant has submitted that the role of the present applicant-
accused is clearly spelt out from the compilation of the charge-
sheet papers. It is submitted that the applicant-accused along
with the other co-accused has hatched a criminal conspiracy
and duped the complainant by giving assurance to give profit
on his investment. However, as the complainant has not got
any profit since last five years, the complainant has tried to get
back the said amount but instead of giving back the amount,
the applicant-accused along with other co-accused
administered threat to the complainant and, therefore, this is a
fit case wherein discretionary power of this Court is not
required to be exercised in favour of the applicant-accused.
6. Learned advocate Mr. Pratik Jasani appearing for the
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complainant has submitted that the present applicant-accused
has actively participated in the commission of the offence from
the very beginning. The complainant was, at all, not in touch
with the accused Nos.2 and 3 and at the instance of the
applicant-accused, the complainant has deposited the amount
in the account of the accused Nos.2 and 3. It is further
submitted that assurance was given to the complainant by the
applicant-accused to get profit from the said investment. It is
also submitted that from the papers of the charge-sheet, it is
found out that the accused Nos.2 and 3 have already repaid
the amount by depositing the said amount in the account of
the applicant-accused and, therefore, by no stretch of
imagination, it can be said that the present applicant-accused
is not involved in the commission of the offence. Learned
advocate Mr. Jasani has further submitted that the complainant
was in touch with the present applicant-accused and upon
assurance being given by the present applicant-accused, the
complainant had deposited such a huge amount of Rs.1.5
Crore in the year 2019. More than five years have been
lapsed, but uptill now even the principal amount has not been
paid to the complainant. Learned advocate Mr. Jasani has also
submitted that the facts of the cases relied upon by the
present applicant-accused is quite distinct and different than
the facts of the present case and, therefore, the same would
not be of any benefit to the present applicant-accused.
Therefore, considering the role attributed to the applicant-
accused, the present application may not be entertained and
the applicant-accused may not be released on bail.
7. The learned advocates appearing on behalf of the
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respective parties do not press for further reasoned order.
8. I have heard the learned advocates appearing on behalf
of the respective parties and perused the papers of the
investigation and considered the allegations levelled against
the applicant and the role played by the applicant. This Court
has also considered the following aspects;
a) That the investigation has already been completed and
charge-sheet has also been filed;
b) That the other co-accused persons in whose account the
amount was deposited, have already been released on bail;
c) That the present offence is a Magistrate Triable Offence;
d) That the applicant-accused is in jail since 14.08.2023;
9. This Court has also taken into consideration the law laid
down by the Hon'ble Apex Court in the case of Sanjay
Chandra v. Central Bureau of Investigation, reported in
[2012]1 SCC 40. I may quote some of the observations made
by the Supreme Court in the said decision which reads thus;
"13. The appellants are facing trial in respect of the
offences under Sections 420-B, 468, 471 and 109 of
Indian Penal Code and Section 13(2) read 2 with 13(i)(d)
of Prevention of Corruption Act, 1988. Bail has been
refused first by the Special Judge, CBI, New Delhi and
subsequently, by the High Court. Both the courts have
listed the factors, on which they think, are relevant for
refusing the Bail applications filed by the applicants as
seriousness of the charge; the nature of the evidence in
support of the charge; the likely sentence to be imposed
upon conviction; the possibility of interference with
witnesses; the objection of the prosecuting authorities;
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possibility of absconding from justice.
14. In bail applications, generally, it has been laid down
from the earliest times that the object of bail is to secure
the appearance of the accused person at his trial by
reasonable amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of liberty must be
considered a punishment, unless it can be required to
ensure that an accused person will stand his trial when
called upon. The courts owe more than verbal respect to
the principle that punishment begins after conviction,
and that every man is deemed to be innocent until duly
tried and duly found guilty. From the earliest times, it
was appreciated that detention in custody pending
completion of trial could be a cause of great hardship.
From time to time, necessity demands that some un-
convicted persons should be held in custody pending trial
to secure their attendance at the trial but in such cases,
'necessity' is the operative test. In this country, it would
be quite contrary to the concept of personal liberty
enshrined in the Constitution that any person should be
punished in respect of any matter, upon which, he has
not been convicted or that in any circumstances, he
should be deprived of his liberty upon only the belief that
he will tamper with the witnesses if left at liberty, save in
the most extraordinary circumstances. Apart from the
question of prevention being the object of a refusal of
bail, one must not lose sight of the fact that any
imprisonment
before conviction has a substantial punitive content and
it would be improper for any Court to refuse bail as a
mark of disapproval of former conduct whether the
accused has been convicted for it or not or to refuse bail
to an unconvicted person for the purpose of giving him a
taste of imprisonment as a lesson.
15. In the instant case, as we have already noticed that
the "pointing finger of accusation" against the appellants
is 'the seriousness of the charge'. The offences alleged
are economic offences which has resulted in loss to the
State Exchequer. Though, they contend that there is
possibility of the appellants tampering witnesses, they
have not placed any material in support of the allegation.
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In our view, seriousness of the charge is, no doubt, one of
the relevant considerations while considering bail
applications but that is not the only test or the factor :
The other factor that also requires to be taken note of is
the punishment that could be imposed after trial and
conviction, both under the Indian Penal Code and
Prevention of Corruption Act. Otherwise, if the former is
the only test, we would not be balancing the
Constitutional Rights but rather "recalibration of the
scales of justice." The provisions of Cr.P.C. confer
discretionary jurisdiction on Criminal Courts to grant bail
to accused pending trial or in appeal against convictions,
since the jurisdiction is discretionary, it has to be
exercised with great care and caution by balancing
valuable right of liberty of an individual and the interest
of the society in general. In our view, the reasoning
adopted by the learned District Judge, which is affirmed
by the High Court, in our opinion, a denial of the whole
basis of our system of law and normal rule of bail system.
It transcends respect for the requirement that a man
shall be considered innocent until he is found guilty. If
such power is recognized, then it may lead to chaotic
situation and would jeopardize the personal liberty of an
individual.This Court, in Kalyan Chandra Sarkar v. Rajesh
Ranjan, (2005) 2 SCC 42 : (AIR 2005 SC 921), observed
that "under the criminal laws of this country, a person
accused of offences which are non-bailable, is liable to be
detained in custody during the pendency of trial unless
he is enlarged on bail in accordance with law. Such
detention cannot be questioned as being violative of
Article 21 of the Constitution, since the same is
authorized by law. But even persons accused of non-
bailable offences are entitled to bail if the Court
concerned comes to the conclusion that the prosecution
has failed to establish a prima facie case against him
and/or if the Court is satisfied by reasons to be recorded
that in spite of the existence of prima facie case, there is
need to release such accused on bail, where fact
situations require it to do so."
16. This Court, time and again, has stated that bail is the
rule and committal to jail an exception. It is also
observed that refusal of bail is a restriction on the
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personal liberty of the individual guaranteed under
Article 21 of the Constitution. In the case of State of
Rajasthan v. Balchand, (1977) 4 SCC 308 : (AIR 1977 SC
2447), this Court opined:
"2. The basic rule may perhaps be tersely put as
bail, not jail, except where there are circumstances
suggestive of fleeing from justice or thwarting the
course of justice or creating other troubles in the
shape of repeating offences or intimidating
witnesses and the like, by the petitioner who seeks
enlargement on bail from the Court. We do not
intend to be exhaustive but only illustrative.
3. It is true that the gravity of the offence involved
is likely to induce the petitioner to avoid the course
of justice and must weigh with us when considering
the question of jail. So also the heinousness of the
crime. Even so, the record of the petitioner in this
case is that, while he has been on bail throughout in
the trial court and he was released after the
judgment of the High Court, there is nothing to
suggest that he has abused the trust
placed in him by the court; his social circumstances
also are not so unfavourable in the sense of his
being a desperate character or unsocial element
who is likely to betray the confidence that the court
may place in him to turn up to take justice at the
hands of the court. He is stated to be a young man
of 27 years with a family to maintain. The
circumstances and the social milieu do not militate
against the petitioner being granted bail at this
stage. At the same time any possibility of the
absconsion or evasion or other abuse can be taken
care of by a direction that the petitioner will report
himself before the police station at Baren once
every fortnight."
25. Coming back to the facts of the present case, both
the Courts have refused the request for grant of bail on
two grounds :- The primary ground is that offence alleged
against the accused persons is very serious involving
deep rooted planning in which, huge financial loss is
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caused to the State Exchequer ; the secondary ground is
that the possibility of the accused persons tempering
with the witnesses. In the present case, the charge is
that of cheating and dishonestly inducing delivery of
property, forgery for the purpose of cheating using as
genuine a forged document. The punishment of the
offence is punishment for a term which may extend to
seven years. It is, no doubt, true that the nature of the
charge may be relevant, but at the same time, the
punishment to which the party may be liable, if
convicted, also bears upon the issue. Therefore, in
determining whether to grant bail, both the seriousness
of the charge and the severity of the punishment should
be taken into consideration. The grant or refusal to grant
bail lies within the discretion of the Court. The grant or
denial is regulated, to a large extent, by the facts and
circumstances of each particular case. But at the same
time, right to bail is not to be denied merely because of
the sentiments of the community against the accused.
The primary purposes of bail in a criminal case are to
relieve the accused of imprisonment, to relieve the State
of the burden of keeping him, pending the trial, and at
the same time, to keep the accused constructively in the
custody of the Court, whether before or after conviction,
to assure that he will submit to the jurisdiction of the
Court and be in attendance thereon whenever his
presence is required. This Court in Gurcharan Singh and
Ors. v. State, AIR 1978 SC 179, observed that two
paramount considerations, while considering petition for
grant of bail in non-bailable offence, apart from the
seriousness of the offence, are the likelihood of the
accused fleeing from justice and his tampering with the
prosecution witnesses. Both of them relate to ensure of
the fair trial of the case. Though, this aspect is dealt by
the High Court in its impugned order, in
our view, the same is not convincing.
26. When the under-trial prisoners are detained in jail
custody to an indefinite period, Article 21 of the
Constitution is violated. Every person, detained or
arrested, is entitled to speedy trial, the question is :
whether the same is possible in the present case. There
are seventeen accused persons. Statement of the
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witnesses runs to several hundred pages and the
documents on which reliance is placed by the
prosecution, is voluminous. The trial may take
considerable time and it looks to us that the appellants,
who are in jail, have to remain in jail longer than the
period of detention, had they been convicted. It is not in
the interest of justice that accused should be in jail for an
indefinite period. No doubt, the offence alleged against
the appellants is a serious one in terms of alleged huge
loss to the State Exchequer, that, by itself, should not
deter us from enlarging the appellants on bail when there
is no serious contention of the respondent that the
accused, if released on bail, would interfere with the trial
or tamper with evidence. We do not see any good reason
to detain the accused in custody, that too, after the
completion of the investigation and filing of the charge-
sheet.This Court, in the case of State of Kerala v. Raneef
(2011) 1 SCC 784 : (AIR 2011 SC 340), has stated :-
"15. In deciding bail applications an important
factor which should certainly be taken into
consideration by the court is the
delay in concluding the trial. Often this takes
several years, and if the accused is denied bail but
is ultimately acquitted, who will restore so many
years of his life spent in custody? Is Article 21 of the
Constitution, which is the most basic of all the
fundamental rights in our Constitution, not violated
in such a case? Of course this is not the only factor,
but it is certainly one of the important factors in
deciding whether to grant bail. In the present case
the respondent has already spent 66 days in
custody (as stated in Para 2 of his counteraffidavit),
and we see no reason why he should be denied bail.
A doctor incarcerated for a long period may end up
like Dr. Manette in Charles Dicken's novel A Tale of
Two Cities, who forgot his profession and even his
name in the Bastille."
28. We are conscious of the fact that the accused are
charged with economic offences of huge magnitude. We
are also conscious of the fact that the offences alleged, if
proved, may jeopardize the economy of the country. At
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the same time, we cannot lose sight of the fact that the
investigating agency has already completed investigation
and the charge-sheet is already filed before the Special
Judge, CBI, New Delhi. Therefore, their presence in the
custody may not be necessary for further investigation.
We are of the view that the appellants are entitled to the
grant of bail pending trial on stringent conditions in order
to ally the apprehension expressed by CBI."
10. In the facts and circumstances of the case and
considering the nature of the allegations made against the
applicant in the FIR, without discussing the evidence in detail,
prima facie, this Court is of the opinion that this is a fit case to
exercise the discretion and enlarge the applicant on regular
bail.
11. Hence, the present application is allowed and the
applicant is ordered to be released on regular bail in
connection with the FIR being C.R. No.11208051230663 of
2023 registered with the Rajkot City 'B' Division Police Station,
Rajkot City, on executing a personal bond of Rs.15,000/-
(Rupees Fifteen Thousand only) with one surety of the like
amount to the satisfaction of the trial Court and subject to the
conditions that he shall;
[a] not take undue advantage of liberty or misuse
liberty;
[b] not act in a manner injuries to the interest of the
prosecution;
[c] surrender passport, if any, to the lower court within
a week;
[d] not leave the State of Gujarat without prior
permission of the Sessions Judge concerned;
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[e] mark presence before the concerned Police Station
on alternate Monday of every English calendar
month for a period of six months between 11:00
a.m. and 2:00 p.m.;
[f] furnish the present address of residence to the
Investigating Officer and also to the Court at the
time of execution of the bond and shall not change
the residence without prior permission of this
Court;
12. The authorities will release the applicant only if he is not
required in connection with any other offence for the time
being. If breach of any of the above conditions is committed,
the Sessions Judge concerned will be free to issue warrant or
take appropriate action in the matter.
13. Bail bond to be executed before the lower Court having
jurisdiction to try the case. It will be open for the concerned
Court to delete, modify and/or relax any of the above
conditions, in accordance with law.
14. At the trial, the trial Court shall not be influenced by the
observations of preliminary nature qua the evidence at this
stage made by this Court while enlarging the applicant on bail.
Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J)
VAHID
