Gujarat High Court
Hasmukhbhai Himmatbhai Nasit vs State Of Gujarat on 23 April, 2025
NEUTRAL CITATION
R/CR.MA/6278/2025 ORDER DATED: 23/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 6278
of 2025
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HASMUKHBHAI HIMMATBHAI NASIT
Versus
STATE OF GUJARAT
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Appearance:
MR AJJ H MURJANI(13356) for the Applicant(s) No. 1
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 23/04/2025
ORAL ORDER
(1) RULE. Learned APP waives service of notice of rule on
behalf of respondent-State.
(2) By way of present application under Section 482 of the
BNSS, the applicant-original accused has prayed to grant
anticipatory bail in the event of his arrest in connection
with the FIR being C.R.No.11191067250009 of 2025
registered at Cyber Crime Police Station, Ahmedabad
City, for the offences punishable under Sections 61, 316(2),
318(2) and 319(2) of the BNS read with Sections 66(c) and
66(d) of the IT Act.
(3) Learned counsel for the applicant submits that the
applicant has been falsely implicated in the offence. It is
submitted that the applicant's mobile number is in the
public domain and has been misused. The applicant has
been arraigned as an accused solely based on the use of his
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mobile number and mere apprehension. He has no prior
criminal record and is not connected to the offence in any
manner. There is no evidence linking him to the offence,
and he is not even named in the complaint. The offence is
punishable with imprisonment of up to 7 years. The
applicant is willing to cooperate with the investigation, and
custodial interrogation is not required, as the material on
record and the allegations against him do not indicate any
connection to the offence. The applicant has no previous
criminal antecedents. Furthermore, the nature of the
allegations is such that custodial interrogation is not
necessary at this stage. The applicant is available for the
investigation and will not flee from justice. In view of the
above, it is prayed that the applicant be granted
anticipatory bail.
(4) The Learned Additional Public Prosecutor, appearing on
behalf of the respondent-State, has opposed the grant of
anticipatory bail, considering the nature and gravity of the
offence. He has submitted that the applicant is the
mastermind and is deeply involved in the criminal activity.
He is the main conspirator. During the investigation, based
on the statement of the co-accused and other material such
as CDR and statements of witnesses and the co-accused, his
involvement is found. He is the kingpin. Initially, he forged
the documents and, in the name of Aditya Birla Exchange,
issued a capital gain tax payment statement to the
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complainant and lured him to invest in the plan by tempting
him with hefty returns. If the complainant gets the return,
he was to pay 20% of the profit to the accused persons.
One WhatsApp group was found, where the present
applicant used the pseudonym "Shubh." Whatever amount
was deposited in the bank and received through the bank
account, he subsequently converted and withdrew the
same in cash, which was received through the
channel/courier Angadia, using the pseudonym "Shubh."
His mobile number was used. The statement of the courier
agencies reveals his involvement. He also forged the
documents of Aditya Birla Exchange, invoking provisions of
forgery. After receiving the said money, he converted it
into USD, thereby gaining financially and duping people,
with an amount of Rs.59,06,754/- involved. He has
committed the offence of cheating and criminal breach of
trust. Not only that, but he has already forged the
documents. The investigation is in its nascent stage. He is
the mastermind. The present applicant is also facing
charges under Sections 66(c) and 66(d) of the IT Act. It is
further submitted that the IO has made efforts to serve the
notice under Section 35 of the BNSS, while the offence was
registered only for criminal breach of trust and cheating.
The present applicant has avoided service of the notice, and
his wife has refused to accept it. Subsequently, his
involvement in forging the documents has been
established. The applicant is accused of committing fraud. If
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he released on bail, the possibility of tampering with
evidence and volatile electronic data cannot be ruled out.
In light of the above, custodial interrogation of the
applicant is essential. Therefore, the application for
anticipatory bail does not warrant any consideration.
(5) This Court has considered the rival submissions made by
learned counsel for both the sides and considered the
material placed on record.
(6) The criteria to grant anticipatory bail and regular bail has
been laid down by the Apex Court in various decisions.
While criminal administration of justice disturbed, arrest is
a part of investigation. After the arrest of the accused when
substantial part of the investigation including remand gets
over, then the Court has to exercise jurisdiction considering
the evidence collected during investigation. It is needless to
say that Section 482 of the BNSS is pre-arrest bail as there
is a part of investigation and importance of the arrest is
time and again discussed by the Hon'ble Apex Court. When
the involvement of the accused is prima facie revealed and
if allegation is not levelled that to defame him or to tarnish
his image, the Court has to exercise jurisdiction, but to seek
anticipatory bail is not an extraordinary jurisdiction and
absolute right of the accused.
(7) Having heard the learned counsel for the respective
parties, gone through the complaint, and perused the
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record. As per the case of the prosecution, the accused
persons impersonated representatives of "Aditya Birla
Exchange" and contacted the complainant via phone. They
falsely promised lucrative returns if he invested money in
the stock market. To convince him, they sent a link and, at
their instance, the complainant downloaded a fictitious
mobile application named 'ABMLIC'.Following their
instructions, the complainant deposited various amounts
on different dates, totaling Rs. 59,06,754/-, into multiple
bank accounts provided by the accused. However, after
receiving the funds, the accused neither returned the
invested amount nor provided any promised profits.Thus,
under the pretense of investing in the stock market, the
accused cheated the complainant out of Rs. 59,06,754/-. An
FIR has been filed against the accused persons, and the
investigation is in progress.
(8) It appears that the present applicant has been arraigned as
an accused for being the conspirator under Sections 54 and
61 of the BNS and offence of forgery also disclosed and
Section came to be added. It is needless to say that in cases
of conspiracy, direct evidence is rarely available. During the
investigation, the Investigating Agency has gathered
sufficient evidence, including CDRs, statements of co-
accused, and other materials, such as the transfer of money
from bank accounts, the use of private channels (e.g.,
courier agencies), and investment of the said amount in
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USD. Based on these facts, prima facie involvement of the
applicant has been established. It appears that the present
applicant impersonated himself and concealed his identity
as a member of the said firm. He initially joined Aditya Birla
Exchange, formed a group, and lured the complainant to
invest money, claiming he had incurred losses in the stock
market but would offer hefty returns in exchange. The
applicant promised that, if the complainant received
returns, he would have to pay 20% of the high
profit/return. The applicant then deposited the invested
amount of Rs. 59,06,754/- into different bank accounts.
However, he neither returned the money nor shared any
profits to complainant. The applicant has defrauded
complainant and evaded arrest, and has not cooperated
with the investigation.
(9) It is worth to mention that the applicant is on run. Hence,
in view of the law laid down by the Hon'ble Apex Court in
case of State of Haryana vs. Dharamraj reported in 2023
INSC 784; Lavesh vs. (NCT of Delhi) reported in (2012) 8
SCC 730; Abhishek vs. State of Maharastra reported in
2022 (8) SCC 282 and Prem Shankar Prasad vs. State of
Bihar reported in 2021 SCC OnLine SC 955 and Srikant
Upadhyay and Others vs. State of Bihar and Another
reported in 2024 SCC OnLine SC 282 and Serious Fraud
Investigation Office vs. Aditya Sarda reported in 2025
INSC 477, i am of the considered view that this is not a fit
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case to exercise the jurisdiction to grant of pre-arrest bail in
favour of the applicant.
(10) Additionally, it was found that the applicant is
involved in the offense of forgery and has forged
documents of the Aditya Birla Investment and given
assurance of 85% return. During the investigation, it was
confirmed that the said documents were forged.
Considering the above facts, custodial interrogation is
necessary. It also appears that the applicant has siphoned
huge amount and committed a systematic fraud and now
taking disadvantage of his knowledge playing with
Investigating Agency and tried to stay away from the
clinches of law.
(11) Further, the present applicant-accused is involved in
white collar socio-economic offence which constitute a
class apart and needs to be visited with a different
approach. The economic offences adversely affect the
economic and social fabric of the country. In such
circumstances also, grant of anticipatory bail at this stage
would frustrate the investigation.
While granting the bail, the Court has to consider the
possibility of tampering and hampering with an evidence
and there is a possibility of accused to flee away from the
justice also.
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(12) Considering the aforesaid fact and keeping in the
mind and after going through the investigation papers,
prima facie, it appears that the present applicant is actively
involved in the offense. Therefore, if bail is granted, then it
may adversely affect the case of prosecution as
investigation is at preliminary stage. This Court has
considered the interest of the prosecution and the
applicant's personal liberty, it cannot over-side the larger
public interest and accused facing charge of organized
crime syndicate. Prior to give weightage to personal liberty,
the Court has to strike balance between personal liberty
and a larger interest of society.
(13) It is needless to say that without proper investigation,
it is impossible to unearth the large scale scam, the
syndicate and to find out the modus operandi, if bail is
granted at this primary stage, which would amount to
premium to unethical and immoral personality. The public
confidence in the system undermines, keeping in mind
sensitivity of matter and if in cavalier fashion benefit of
parity extended or bail granted, then not only wrong
message will travel in the public but hamper the
investigation and tampered with an evidence which is
nothing but amounts to premium to wrongdoers. The
present applicant has received the amount in his bank
account. Thereafter, he siphoned the said amount i.e. an
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amount of Rs.59,06,754/- using various private channels and
through Angadia. The said amount has yet to be recovered,
and it remains to be determined where he received it from
and how it was converted into USD. The entire matter
requires a thorough investigation.
(14) When serious offences are disclosed and involvement
of an accused prima facie established then, the Court would
be loath to lean in favour of grant of pre-arrest bail in
absence of any other overriding considerations. The alleged
offence is in nature of white collar and socio economic
offence, this Court is conscious with the safeguards
provided under Section 482 of BNSS and concept of the
personal liberty. But herein, This court is considered of view
that, the present offence is committed very smartly and
very planned and methodically which is not just an offence
against any individual rather the largest societal interest
and in such circumstances, the delicate balance is required
to be maintained between two rights one against the
personal liberty and second is societal interest. Arrest is
part of the process of investigation and intended to secure
several purposes. In which the accused may provide
information, during the the discovery of material facts and
to relevant information. In such circumstances, when
investigation is in preliminary stage if, anticipatory bail is
granted may hamper the investigation and to collect the
material in the more information, and find out the
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involvements of another person custodial interrogation is
also necessary, therefore, 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.
(15) Having regard to nature of allegations and stage of
investigations, held investigating agency must be given
sufficient freedom in process of investigation. Applicant is
not entitled to anticipatory bail as the same would hamper
the investigation
(16) Learned advocate for the argued that the applicant is
arraigned as an accused based on the statement of co-
accused, but it is needless to say that, during the
investigation, under Section 67 also statement of co-
accused is relevant is provided clue. Relying upon the
judgments of this Court rendered in the case of Mohmed
Salim Abdul Rasid Shaikh Vs. State of Gujarat, rendered
in 2001 (2) GLR 1580 as well as in the case of Dolatram
Tekchand Harjani Vs. State of Gujarat, reported in 2013
(3) GLR 2133, so far investigation is concerned, statement
of the co-accused is relevant and it provides the clue and
for that purpose, statement of co-accused is relevant and as
the serious offence is disclosed. In the case of Mohammed
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Fasrin Vs. State (CR.MA/296/2014), the Apex Court has
observed as under:
"...The confessions of a co-accused gives a clue to the
investigating authorities as to how to investigate the
matter and against whom to investigate the matter.
Thereafter, it is for the investigating officers to collect
evidence against the said person who has been made
by the co-accused."
(17) Hence, in such cases, the Court should not exercise its
jurisdiction granting anticipatory bail. Even, this is not only
a case, merely based on the statement of co-accused, the
present applicant is arraigned as an accused. Perusing the
statement of another witnesses and with the constant
touch with the co-accused, CDR, it appears that present
applicant is involved in the illegal activity and trafficking of
drug. For that custodial interrogation is required and having
one past antecedent also.
(18) In the case of Central Bureau of Investigation Vs. Vikas
Mishra @ Vikash Mishra, reported in (2023)6 SCC 49, the
right of custodial interrogation is very important right of
the investigating agency to unearth the truth and which the
accused has purposely and successfully tried to frustrate.
Hence, police custody for interrogation is necessary. Here in
the case on hand, complainant has lost his hard earned
income and to recover the said amount, custodial
interrogation is necessary. It is also important to refer the
decision of Manik Madhukar Sarve vs Vithal Damuji
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Meher, reported in 2024 INSC 636. In the case of economic
offence, many time amount is diverted or siphoned off in
different accounts and for that custodial interrogation is
required which is an important tool to trace out the
amount. It is apt to refer the decision of the Hon'ble
Supreme Court of India delivered in case of State of
Gujarat Vs. Mohanlal Jitmalji Porwal & Anr., reported in
1987 (2) SCC 634, wherein the Hon'ble Apex Court in para 5
held as under:-
"5. The entire community is aggrieved if the
economic offenders who ruin the economy of the
State are not brought to book. A murder may be
committed in the heat of moment upon passions
being aroused. An economic offence is committed
with cool calculation and deliberate design with an
eye on personal profit regardless of the consequence
to the Community. A disregard for the interest of the
community can be manifested only at the cost of
forfeiting the trust and faith of the Community in
the system to administer justice in an even handed
manner without fear of criticism from the quarters
which view white colour crimes with a permissive
eye unmindful of the damage done to the National
Economy and National Interest."
(19) Further, keeping in mind Law laid down by the Hon'ble
Supreme Court in the case of Siddharam Satlingappa
Mhetre V/s State of Maharashtra and Others reported in
(2011) 1 SCC 694. Herein, I have gone through the material
available against the accused very carefully and it appears
that herein, no complaint has been made with view to
humiliating or tarnish the image of the present applicant.
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(20) Further, in the case of Pratibha Manchanda vs The State
of Haryana, reported in AIR 2023 SC 3307, wherein the
Hon'ble Apex Court has held in Para 19 as under:
"19. 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."
(21) It would be apposite to refer the decision of the Hon'ble
Apex Court in case of Vijay Madanlal Choudhary versus.
Union Of India reported in 2022 11 SCC 705. Only
quantum of punishment is not a criteria to grant bail
application and accused cannot claim anticipatory bail as of
right.
Merely the quantum of punishment is not a sufficient
ground; the Court must also consider the impact on society.
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(22) Even in Jai Prakash Singh V/s State of Bihar and another,
reported in (2012) 4 SCC 379, Honourable Supreme Court
pleased to hold:
"Parameters for grant of anticipatory bail in a
serious offenceare required to be satisfied and
further while granting such relief, the court must
record the reasons therefore. Anticipatory bail
can be granted only in exceptional circumstances
where the court is prima facie of the view that
the applicant has falsely been enroped in the
crime and would not misuse his liberty."
(23) Furthermore, if the applicant is indeed innocent, he ought
to have joined and cooperated with the police investigation
rather than absconding from the scene. However, he has
failed to do so and is currently evading arrest. This conduct
on the part of the applicant clearly indicates mens rea.
Innocent individuals generally do not display such unnatural
behavior in the ordinary course of events. In the present
case, the applicant's conduct is a significant factor and must
be duly considered. It is well-settled that conduct may vary
from person to person; however, when the involvement of
the accused is prima facie established, and the allegations
are not found to be maliciously intended to defame or
tarnish the image of the applicant, the Court must exercise
its jurisdiction judiciously. It is important to emphasize that
the grant of anticipatory bail is neither an extraordinary
jurisdiction nor an absolute right of the accused. In this
context, reference may be made to the judgment of the
Hon'ble Supreme Court in State of Madhya Pradesh vs.
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Ram Kishan Balothia, reported in (1995) 3 SCC 221.
(24) The object of anticipatory bail is that person should not be
harassed or humiliated in order to satisfy the grudge or
personal vendetta of the complainant. In present case, no
any such sort of allegation or bias is found out it is needless
to say that order under Section 482 of the BNSS is not a
passport to the commission of trial nor a shield against any
serious accusation, which adversely affects the society.
Here in the instant case, the complainant has lost his hard
earned money.
(25) So far as the argument of the learned advocate is
concerned, regarding the applicant being a travel agent
and his mobile number being listed in the public domain
and misused, the said arguments cuts no ice in as much as
the cash transactions took place with Angadia firms
through private channels and withdrawals were made
using a pseudonym name "Shubh" by applicant. The two
mobile numbers match the registered users associated with
the applicant, and the co-accused has also corroborated
this fact and constant touch with Angadia firms also
revealed during the investigation.
(26) This Court is of the considered view that if the present
accused is equipped with protective order, it would
obviously adversely affect the case of the prosecution and
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the qualitative investigation as applicant is having trained
legal mind and he will tamper with evidence and witnesses
of prosecution and here other two accused are still out of
reach, who are directly connected with the present accused
and other co-accused.
(27) In the above facts and circumstances and considering the
observations on the legal aspect of the matter, this Court
has absolutely no doubt that if applicant is equipped with
such an order before he is interrogated by the Police, it
would greatly harm the investigation and would impede
the prospects of unearthing all the ramifications involved in
the conspiracy. Having considered nature and seriousness
of the charge, prima facie involvement of accused and
possibility of tempering with evidences, it does not appear
to be just and proper to exercise the discretion in favour of
the applicant and accordingly, the application for
anticipatory bail is dismissed. Rule is discharged.
However, it is needless to say that, the observations
made in this order are tentative in nature.
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
