Varshaben W/O Nitinbhai Shamjibhai ... vs State Of Gujarat
2024 Latest Caselaw 3915 Guj

Gujarat High Court

Varshaben W/O Nitinbhai Shamjibhai ... vs State Of Gujarat on 1 May, 2024

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     R/CR.MA/7229/2023                              ORDER DATED: 01/05/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 7229
                          of 2023

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               VARSHABEN W/O NITINBHAI SHAMJIBHAI PATEL
                                Versus
                      STATE OF GUJARAT & ANR.
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Appearance:
MR HB CHAMPAVAT(6149) for the Applicant(s) No. 1
Ms. HIMANI KINI(7489) for the Respondent(s) No. 2
MR SOHAM JOSHI APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                            Date : 01/05/2024

                             ORAL ORDER

By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release her on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11210055211881 of 2021 registered with Salabatpura Police Station.

2. The short facts of the case are that FIR is lodged by Saiyed Mohammad Mohiddin Bachha who is the Assistant manager of Tamilnadu Mercantile Bank. If the said FIR is perused then it is alleged against the present applicant that the applicant is the proprietor of 'Prayosha Art' and the applicant has taken an overdraft (working capital) loan of Rs. 95 lakhs on 23.11.2020 from the bank of the complainant. It is also alleged that the complainant has mortgaged certain shops against the said loan, but after taking the loan facility, the applicant-accused failed to repay the same and on 31.05.2021, the loan account became

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NPA and has not repaid the loan. With these sorts of allegations the complaint came to be filed against the present applicant as well as other accused person.

3. Upon filing of the aforesaid complaint, the applicant preferred an application seeking anticipatory bail before the learned court below which came to be rejected and thus present application is filed.

4. Heard learned Advocates appearing for the respective party at length.

5. Learned Advocate Mr.Champavat for the petitioner would submit that petitioner is a lady accused and has not committed any offence as alleged in the FIR. He would further submit that while taking loan, the petitioner has mortgaged 15 shops / offices which have been taken into possession by the concerned Bank and in view of that the amount of loan is secured. He would further submit that FIR was filed only on the ground that she has not paid back the amount of the loan taken from the bank. He would further submit that petitioner is ready and willing to co-operate with the investigation and she is permanent resident of Surat city and there is no flight risk and has not antecedents.

5.1 Learned Advocate for the petitioner would further submit that similarly situated accused persons have been considered for bail by Hon'ble Apex Court and / or by this Court and therefore on the ground of parity, this Court may exercise the discretion in favour of the petitioner.

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5.2 By making the above submissions, learned advocate for the petitioner would submit to allow this application and to enlarge the petitioner on anticipatory bail.

6. On the other hand, learned Advocate Mr.M H Sonar appearing for Ms.Kini for respondent No.2 - Bank referring to the affidavit filed by the Regional Manager of the Bank would submit that in total Rs.4.00 Crore and odd amount being declared as NPA which is outstanding against the petitioner. He would further submit that considering the role played by the petitioner of siphoning of public money, she may not be enlarged on anticipatory bail.

7. Learned APP for the respondent - State would submit that in the present case the first charge-sheet was filed on 25/02/2022 against other accused persons wherein present petitioner was named in column no.12 as absconding accused. Thereafter, second supplementary charge-sheet was filed on 03/07/2023, at that time also petitioner was not traceable and shown as absconding accused. Another supplementary charge- sheet was filed on 31/10/2023 which also indicates that petitioner was absconding and last supplementary charge-sheet was is filed on 14/02/2024 wherein also petitioner is shown as absconding. Thus, charge-sheet is filed against all other accused persons except the petitioner as she is not co-operating with the investigation and she is on run and therefore petitioner may not be enlarged on anticipatory bail.

8. Replying the above submissions, learned advocate for the

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petitioner would submit that present application has been filed on 17/04/2023 and therefore petitioner is before this Court and she could not be treated as absconding accused.

9. Having heard the learned advocates appearing for the respective parties, what appears that petitioner is on run. Recently, the Hon'ble Apex Court in case of Srikant Upadhyay Versus State Of Bihar [2024 JX(SC) 212] has observed that when warrant of arrest or proclamation is issued, applicant is not entitled to invoke the extra-ordinary power. Relevant discussion is made in paragraph 24 which reads thus:

"24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant."

10. Here in the present case, the petitioner is shown as absconding and even after filing of supplementary charge-sheet for four times, she is not available for investigation.

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11. Petitioner is concealing from investigation. She is shown as absconding in the charge-sheet which prima facie establish that petitioner is running from the investigation and therefore she could not given relief of anticipatory bail being extraordinary in nature. Useful reference can be taken from the judgment Prem Shanker Prasad vs. State of Bihar 2022 14) SCC 516 and Lavesh Versus State (Govt Of Nct Of Delhi) [2012 (8) SCC 730] . In Lavesh (supra), the Hon'ble Apex court has observed in paragraph 10 as under:

"10. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as "absconder". Normally, when the accused is "absconding"

and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail."

12. It was submitted by learned advocate for the petitioner that petitioner is before this Court since April, 2023 and therefore petitioner could not be treated as absconding. This submissions is taken care by decision in case of Srikant Upadhyay (supra) by observing that merely filing of an anticipatory bail application would not amount to an appearance before the Court. At this juncture, learned advocate for the petitioner would submit that petitioner has also filed the quashing petition wherein the co- ordinate Bench of this Court has passed an order to follow the directions issued by the Hon'ble Apex Court in case of Joginder Sharma. How this order would helpful to the petitioner; learned advocate for the petitioner has failed to point out. The facts which could be gathered is that huge economic loss has been

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caused to the Bank. Rs.4.00 Crore and odd amount is declared as NPA. The petitioner after availing loan of Rs.95.00 Lakhs has paid a meager amount of Rs.6,93,761/-. According to the FIR, the petitioner has mortgaged 15 shops / offices to avail the loan amount and were rented at the relevant time. However, it is clear from the affidavit filed on behalf of the Bank that symbolic possession are taken by the Bank. As far as the anticipatory bail is concerned, huge economic and designed offence is committed by the accused.

13. It was also sought to be submitted that petitioner is female accused having children and therefore she may be considered for anticipatory bail. This Court do not incline to accept such submissions that merely because the accused is female she is entitled to anticipatory bail; though the petitioner being female, she committed huge economic offence and therefore after committing such offence, such a claim would not be made by the petitioner.

14. To be noted further that, by an order dated 12/03/2024, this Court directed the respondent no.2 - Bank to place on record the details as to whether the properties which were mortgaged by the petitioner is sold out or not and if sold, what amount is to realized. The affidavit indicates that still the properties mortgaged are not sold.

15. A useful reference can also be made of the decision of Hon'ble Apex Court in case of Pratibha Manchanda and another Vs. State of Haryana and another reported in (2023) 8 SCC 181, where in para 21, observed as under:-

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"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 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."

16. 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 applicant fleeing from 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. Anticipatory bail is not 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. The fact of the case demands custodial interrogation of the petitioner.

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Under the circumstances, the petitioner is not entitled for anticipatory bail.

17. In view of the above, no case is made out to exercise the extraordinary jurisdiction to grant anticipatory bail. Accordingly, present petition fails and stands dismissed. Needless to say that observations made herein above are limited to decide the present application.

(J. C. DOSHI,J) sompura