Gujarat High Court
Khatana Kaushikbhai S/O Ratnabhai vs State Of Gujarat on 5 August, 2025
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Reserved On : 30/07/2025
Pronounced On : 05/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 14816
of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
No
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KHATANA KAUSHIKBHAI S/O RATNABHAI
Versus
STATE OF GUJARAT
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Appearance:
MR. YATIN OZA, LD. SR. ADV. WITH MR. M.I. SAIYED, LD. ADV. WITH MR.
ARBAZKHAN PATHAN, LD. ADV. WITH MR JAYDEEP V DESAI(9970) for
the Applicant(s) No. 1
MR. ANSIN DESAI, LD. SR. ADV. WITH MR. JAL UNWALLA, LD. SR. ADV.
WITH MR.PARTH CONTRACTOR(7150) for the Respondent(s) No. 1
MR. HARDIK SONI, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Rule returnable forthwith. Learned APP Mr. Hardik Soni
waives service of notice of rule for respondent - State of Gujarat
and learned advocate Mr. Parth Contractor waives service of
notice of rule for and on behalf of the original complainant.
2. By way of the present application under Section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the
applicant has prayed for anticipatory bail in the event of arrest in
connection with the FIR being C.R. No.11206005250201 of 2025
registered with Bavlu Police Station, Mahesana District for the
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alleged offences as mentioned in the FIR.
3. The nuts and bolts of the case of the prosecution are that
the FIR came to be lodged by the complainant, namely,
Mananbhai Ashwinbhai Manibhai, inter alia, alleging therein that
he is earning his livelihoods by carrying out the construction
work, and he purchased some parcels of land being Survey
Nos.1323, 1188 and 1186 in the sim of village Vekra and a parcel
of land being Survey No.148 in the sim of village Varkhadiya in
the year 2021-22, and one Patel Rimpalbhai Harshadbhai is his
partner in the said land, and in respect of the said land, he and
his partner Patel Rimpalbhai have filed suits before the
competent civil court, which are going on till today. It has been
alleged that on 26.04.2025, at around 9:00 O'clock in the
morning, the complainant along with his partner Patel Rimpalbhai
Harshadbhai, Amitbhai Sharma, a resident of Ahmedabad,
Bharwad Bharatbhai Govindbhai, a resident of Silver Book, Shilaj,
Dikshit Narendrasinh Chudasma, a resident of Ahmedabad and
Pankaj Gohil, a resident of Ahmedabad came to village Vokra as
the Superintendent of Court Commission was supposed to come
there pursuant to the aforesaid pending suits, and at that time,
the Court Commission, namely, Tusharbhai Raval also reached
there, and as the name of one Mehulbhai Raghunathbhai Rabari
is running in the land situated in the sim of village Moje Vokra
being Survey Nos.1323, 1188 and 1186, he along with his
brother Satishbhai Raghunathbhai Rabari, Rameshbhai @ Bhano
Babubhai Desai, Rabari Kaushikbhai Hemrajbhai, Sanjaybhai
Punabhai, Suhas @ Pushpa Rajput, Anno Rabari, Karan Rabari,
Rabari Umang, Anand Rabari, Harsh Rabari, Senghabhai Rabari,
Panko Rabari, Jaylo, Lagdhirbhai Desai also came there, and all
these persons were came there at the instance of Mahul Rabari,
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and then, after completing the Panchnama proceedings of Survey
Nos.1323 and 1188 by the Court Commission, as we decided to
go to village Varkhadiya for carrying out the Panchnama
proceedings of Survey No.148, the said Mehul Rabari and all his
aforestated accomplices, pushed the officer of the Court
Commission out of the gate, and then closed the doors, and told
four to five persons to stay over there to see to it that nobody
would enter into the field, whom the complainant does not know,
and then the said Mehul Rabari and the all the aforestated
persons accompanied him, started hurling abuses to the
complainant and his partner Rimpalbhai and told them that why
you have filed a suit in the Court in respect of his land of
aforestated three survey numbers,, and how dare you to file a
suit in the court against us, and by saying so, started
administering threats, and the said Mehul Rabari and all his
aforestated accomplices, as per their pre-planned conspiracy of
making a quarrel with us, were having sharp weapons like sticks,
scythe and knife in their hands, with which, with a view to kill the
complainant and Rimplabhai, made a deadliest attack upon them,
due to which, they started running towards the agricultural field,
and as the field was fallow, they could not run, and therefore, the
said Mehul hit the blow with a stick on the leg of the complainant,
due to which, the complainant fell down, and Rabari Kaushikbhai
hit the stick blow to Rimpalbhai, due to which, he also fell down,
and then, the said Mehul Rabari and his accomplices, started
giving sweeping blows with the stick and scythe to the
complainant and Rimpalbhai, and Mehul Rabari inflicted stick and
scythe blows to the complainant on his both legs, and Rabari
Kaushikbhai and Anno Rabari inflicted blows to Rimpalbhai with
the stick and knife, and as the person who came along with
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them, namely, Amitbhai Sharma, tried to intervene, the
accomplices of said Mehul also started giving him blows with the
stick, and Mehul Rabari and Kaushik Rabari told the complainant
and Rimpalbhai that today both of them have to be killed, and as
the complainant started screaming, at that time, Mehul Rabari
gave a knife blow on the left elbow of the complainant and
Kaushik Rabari gave scythe blow on the right side leg of
Rimpalbhai, and then Mehul took the scythe from Kaushikbhai
and gave scythe blow on the shoulder of the complainant and on
the head of Rimpalbhai, and the said Mehul and his accomplices,
were giving sweeping blows to them, and at that time, the said
Mehul Rabari snatched away the Rolex Watch and the platinum
gold chain, and Kaushikbhai also snatched away the gold
bracelet of Rimpalbhai, and then, as the complainant and the
injured started screaming, all the accused persons left the place,
and then one Bharatbhai and Dikshitbhai called 108 ambulance
and took them to Kadi Bhagyoday Hospital for treatment, where
after taking preliminary treatment, they were shifted to Zydus
Hospital, and due to such deadliest attack, both, the complainant
and Rimpalbhai sustained severe injuries on the different parts
of their bodies. With this sort of allegations, the present FIR has
been registered.
4. Thus, apprehending his arrest pursuant to the registration
of the aforesaid FIR, the applicant preferred anticipatory bail
before the trial court, however, the trial court has not entertained
the said application and rejected the same.
5. Being aggrieved, the applicant is here before this Court with
the present application.
6. Learned senior advocate Mr. Yatin Oza assisted by learned
advocate Mr. M.I.Saiyed, learned advocate Mr. Arbazkhan Pathan
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and learned advocate Mr. Jaydeep Desai appearing for the
applicant submits that the allegations made in the FIR are of such
a nature, for which, custodial interrogation of the applicant at
this stage is not necessary. He further submits that the applicant
will keep himself available during the course of investigation as
well as the trial proceedings and will not flee from justice. He also
submits that the present applicant is innocent and has falsely
been implicated in the present offence. Learned senior advocate
Mr. Oza very stoutly submits that the present FIR is nothing but
an afterthought being lodged after taking advise from the legal
brain, as the alleged incident took place on 26.04.2025 during
the period between 10:00 to 10:30 a.m., for which, FIR came to
be lodged on 27.04.2025 at around 5:00 p.m., and as such,
there is a delay of almost 30 hours in registering the FIR for the
so called serious offence so far as the present applicant is
concerned, and even if the FIR is perused, nowhere in the entire
body of the FIR, there is any plausible explanation worth the
name regarding the delay in registering the FIR. Thus, it is clear
like a cloudless sky that the FIR is an afterthought being filed with
an ulterior motive and with a mala fide intention to falsely induct
the present applicant in the crime in question just because he is
having good terms with the accused No.1-Mehul Rabari, which
the complainant knew very well.
7. Learned senior advocate Mr. Oza further submits that
neither the present applicant was a part of any unlawful
assembly nor was armed with any weapon at the time of
occurrence of the alleged incident and he did not cause any
injury to anyone. In fact, the present applicant was also being
assaulted and abused by the person from the complainant,
namely, Bharatbhai Bharwad as he was recording the video of the
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entire incident. He also submits that the said Bharatbhai Bharwad
also pointed a gun on the forehead of the present applicant and
snatched away his Apple Mobile Phone as he was making a video
of the incident. In this regard, a written complaint was also made
by the present applicant on 29.04.2025. Learned senior advocate
Mr. Oza further submits that from the video circulated on social
media of the alleged incident, the present applicant is not seen in
the video beating the complainant and his associates. Learned
senior advocate Mr. Oza submits that the very same complainant
also lodged another complaint after the occurrence of the alleged
incident invoking altogether different provisions of law against
almost the very same accused, however, there is no whisper
about the alleged incident in the said FIR. He further submits that
as per the case of the prosecution, pursuant to the order passed
by the civil court in respect of an ongoing land dispute between
both the sides, a Court Commission was appointed by the Court
to carry out the measurement of the land, and in the presence of
the Court Commissioner, the entire so called incident had taken
place, and therefore, the statement of the Court Commissioner is
required to be seen so that the real truth could be elicited, and
from the perusal of his statement it appears that he has not
disclosed the name of any of the accused persons in his entire
statement. He submits that the complainant is a well-known
builder in North Gujarat, having deep connections in the vicinity,
and by using the said connections, got the FIR registered almost
after 30:00 hours from the occurrence of the incident after using
a legal brain, so that as many as persons can be implicated.
Police could have immediately registered the FIR, but instead,
provided sufficient time to the complainant to take legal advice
so that as many as persons can be implicated. Learned senior
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advocate Mr. Oza submits that considering the fact that the
present applicant is not a hardcore criminal, and he is having a
family consisting of old aged mother, pregnant wife and two
years old daughter to be looked after, coupled with the fact that
in the video circulated on social media about the alleged incident,
the present applicant is not seen in the same, his custodial
interrogation does not seem to be necessary.
8. In such circumstances, referred to above, learned senior
advocate Mr. Oza prays that there being merit in the present
application, the same be allowed and the present applicant be
released on anticipatory bail.
9. But, the present application has been vehemently opposed
by the learned APP Mr. Hardik Soni appearing for the State. He
submits that the present applicant has been named in the FIR
along with his specific role, and his involvement appears to be
there in the commission of the crime since very beginning.
Learned APP Mr. Soni further submits that the alleged incident
occurred while implementing the order passed by the court of
law, and as such, it can be said that all the accused persons
including the present applicant, tried to create hurdles in the way
of a Government Official in carrying out his duties pursuant to the
order passed by the court of law. Complete lawlessness situation
was created by all the accused persons. Learned APP also
submits that it was the present applicant who was videographing
the entire incident, and therefore, he is not appearing in the
video, however, from the police papers, it clearly appears that
the present applicant gave a stick and knife blow to Rimplabhai
on his legs and also snatched away the gold bracelet of
Rimpalbhai worth Rs.2,50,000/-. Learned APP further submits
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that then just to create panic in the vicinity and to spread fear
amongst the people, the present applicant videographed the
entire incident in his mobile. He also submits that all the accused
persons, in collusion with each other, hatched a criminal
conspiracy, and then made an unlawful assembly to fulfill their
common intention, and as a part of the same, made an attack
upon the complainant and his associates with a view to kill them.
Learned APP further submits that so far as the defense raised by
the present applicant that his mobile phone was snatched away
and he dialed the police control room from another phone is
concerned, the investigating officer has carried out investigation
in this regard, and ultimately, reached to the conclusion that
there is no merit in the defense raised by the applicant, and all
his grievances have been deliberately dealt with by the
investigating officer. Learned APP Mr. Soni has shown the video of
the incident, and submits that very deadliest attack was made by
the accused persons upon the complainant and his associates,
due to which, very serious injuries were received by them, which
is evident from the medical papers collected by the investigating
officer during the course of investigation. Moreover, there are
three past antecedents against the present applicant, out of
which, two offences are bodily related offences, and as such,
looking to the overall facts and circumstances of the present case
and the role of the present applicant coming out from the
materials placed on record, the present application be rejected.
10. The present application has also been vehemently opposed
by learned senior advocate Mr.Ansin Desai and learned senior
advocate Mr.Jal Unwalla appearing for the original complainant.
He submits that a well designed plan was orchestrated by all the
accused persons in connivance with each other in order to create
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panic in the vicinity. He also submits that the present applicant is
not so innocent as is projected by the learned senior counsel
representing him. The present applicant was the main co-
conspirator of the entire conspiracy and have also played a key
role in execution of the same. It appears from the police papers
that the present applicant gave a knife blow to the partner of the
complainant, namely, Rimplabhai. Learned senior advocate Mr.
Desai submits that the present applicant attempted to cause
fatality to the complainant and Rimpalbhai, which resulted in
extremely grievous injuries, including fractures of hands, legs,
ribs and skull, which resulted in hospitalization at Zydus Hospital
for seven days. Learned senior advocate Mr. Desai submits that
the present applicant along with the other co-accused, as per the
conspiracy hatched by them, remained present at the disputed
site with the deadly weapons with a view to cause fatal injuries to
the complainant and to cause a deliberately impediment in the
process of law. He submits that the present applicant, Mehul
Rabari and other gang members who were already there at the
disputed land and were hiding behind the bushes, armed with the
sharp and deadliest weapons and started beating the
complainant and Rimplabhai for having filed suits in relation to
the disputed land. He further submits that the present applicant
also snatched away the gold bracelet and a real diamond
bracelet of Rimpalbhai worth Rs.2,50,000/-.
11. Learned senior advocate Mr. Desai further submits that the
role of the present applicant does not end here. After beating the
complainant and his partner Rimplabhai, the present applicant
also videographed the entire incident from a close distance and
circulated multiple clips from the same so as to instill fear in the
vicinity as also to ensure that no one from the vicinity come
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forward to depose against them. Learned advocate Mr. Desai
submits that the present applicant is a head-strong person
having three past antecedents, two of which, are bodily related
offences. Learned senior advocate Mr. Desai also submits that
the present applicant is still absconding, and is evading execution
of arrest warrant, and as such, it is settled law that the accused,
who is absconding or obstructing warrant executions, is not
entitled to be released on bail. He also submits that the present
applicant is the king-pin of 'Balaji Gang', and as such, granting
respite to the present applicant, would send a wrong message in
the society that such kind of goons can get away with such
lawlessness with ease. Learned senior advocate Mr.Desai submits
that he has seen the visuals of the video, and on seeing the
same, he can say that he has never seen such kind of brutal
attack in the entire State as has been made by the accused
persons in the present case. Thus, considering the fact that the
present applicant is a head-strong person having deep
connections at the Bavlu Police Station, there are all possible
chances that the applicant will influence the investigation which
is presently going on. Even after being released on bail, the
applicant along with other accused, who have demonstrated
scant regard for law and judicial procedure, will remain
emboldened to commit similar crimes and offences. Learned
senior advocate Mr. Desai submits that the present applicant who
is directly involved in the commission of crime, and who has
sought to instill fear in the society, will indulge in influencing
witnesses and directly impede the investigation Moreover, there
are all possible chances of applicant being fled after being
released on bail.
12. In such circumstances, referred to above, learned senior
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advocate Mr. Desai prays that there being no merit in the present
application, the same be rejected.
13. I have heard the learned senior counsel appearing for the
respective parties and the learned APP appearing on behalf of
the State-respondent, as also perused the record.
14. The law is that bail, in non-bailable cases, is not a matter
of right. It is in the discretion of the Court. This discretion is not
a wild horse. It has to be supported by reasons and the law
governing the grant of the bails. The same should not be
exercised as a straight jacket formula. The Court has to take
into consideration all the relevant facts and circumstances of
the subject matter. The Law of Bails should balance between
two conflicting demands, viz. shielding the Society from
misadventures of persons allegedly involved in crime and the
presumption of the innocence of the accused till he is found to
be guilty of the offence. The law also provides that, normally,
grant of bail, in a heinous offence like one on hand, i.e,
attempt to commit murder, is not a rule. In such cases, public
policy and the general state of crime of such nature, should be
the consideration which should weigh with the Court while
considering an application for bail. It does not mean that it is
an inflexible rule. There may, even in this category of cases, be
some appropriate exceptions where bail may deservingly be
granted. One of the primary considerations would be as to
whether on the basis of the evidence and the documents
presented by the prosecution, it can be said that there are
grounds to believe that the accused are involved in the
commission of offences punishable with death or
transportation for life and, if there are such reasonable
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grounds on which the accused are likely to be charged of
attempt to commit murder, then the question of grant of bail
would not arise. It is not conducive to judicial health and
discipline to grant bail in the present case, as it will adversely
affect the administration of justice. It is also bound to provide a
haul to the brutes and anti-social elements to indulge in
heinous crimes with impunity. This will weaken the moral fiber
of the society and twist the arms of the law. While it is true
that personal liberty is a very valuable asset, but the liberty of
those who are law abiding is perhaps more valuable than the
liberty of those law breakers as they themselves are
responsible for its forfeiture. Over the centuries, we have been
dealing with such cases. The persons under trial for
committing heinous offence languish in jails for years because
of the demands of public policy. Courts are loath in enlarging
such offenders on bail. That accounts for the normal practice of
the Courts to refuse bail for crimes of such nature. Unmerited
grant of bail in a heinous offence like attempt to commit
murder can neither serve the ends of justice and law nor of the
society. It would only serve the interest of some powerful
interest groups. With the present state of our society and the
surge in the rate of such kind of crimes, one can ill afford to be
so liberal. Any reckless use of discretion, therefore, in such
cases, is bound to shake the confidence of the society.
15. Looking to the application of the applicant from the
above perspective, the order of the learned trial Court
directing the rejection of the application seeking bail requires
to be assessed and evaluated, taking into consideration the
facts and circumstances of the case. The learned trial Court,
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after taking an overall view of the matter, has held that the
presence of the applicant, prima facie, appears to be there at
the scene of offence from the very beginning. The allegations
against the present applicant are quite serious in nature that
the present applicant gave knife and stick blows to Rimpalbhai
and also snatched away his gold bracelet. It has been rightly
observed by the trial court that the bracelet and knife are still
to be recovered, and therefore, custodial interrogation of the
applicant seems to be necessary. It has been further observed
that, and rightly so, that the investigation is at a nascent
stage, and as per the police papers, prima facie involvement of
the present applicant appears to be there from the very
beginning, and therefore also, custodial interrogation of the
present applicant is necessary. Over and above what has been
observed by the trial court, there are some important eye-
witnesses, and as per the case of the prosecution, the
complainant itself is an eye-witness, and the investigation of
the case is in progress, and thus, in my considered opinion,
exercising discretion in favour of the applicant at this stage of
the investigation, would definitely hamper the investigation.
16. Over and above what is observed in the foregoing
paragraphs, I would like to observe something important. It is
argued by learned senior counsel for the applicant that the role
of the applicant is that he was only making the video of the
incident, however, in my view, such a conduct of the applicant
itself has put him in the shadow of doubt, as, if he is so
innocent, as projected, then instead of making video, if he
would have immediately called the police, then the damage
would not have been so much and the situation could be taken
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into control. However, the present applicant did not do what
actually he had to do being a human. The applicant could have
called the police immediately on seeing the incident, however,
instead of doing so, he wasted his time in videograhing the
incident. Moreover, it appears that the videos also got
circulated on the social media with a view to create panic in
the vicinity, as also to spread fear amongst the locals. From
the affidavit of the investigating officer, it appears that the
present applicant also gave knife and stick blows to Rimpalbhai
and also looted his bracelet. This court has also seen the video,
which is quite disturbing. I wonder how one person can beat
another so mercilessly, which this Court has seen in the video,
the ultimate result of which, may be a death of that person,
which the assailants knew very well, and as such, the elements
of mens rea also come fore. Prima facie, it appears that the
intention of the accused was to kill the complainant and his
associates. It also appears from the record that all the accused
persons positioned themselves at the place of offence a night
before with the deadliest weapons. These are the facts which I
could gather from the materials collected so far and placed
before this Court, which are glaring in nature.
17. Thus, looking to the peculiar facts and circumstances of
the present case, the same are like a glooming skies. 'Whether
the present applicant was passersby and stopped at the place
of occurrence upon hearing the shouts, how he entered into
the field and remained there though the others were pushed
out of the field, whether the videos got circulated from the
mobile of the present applicant or from someone else's mobile,
how the present applicant lost his mobile at the scene of
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offence and who found it there etc., are the questions, the
answer of which, in my prima facie opinion, can only be
gathered from the interrogation of the present applicant.
18. Now I would like to refer to the decision in the case of
Talib Haji Hassan V. Madukar Parshotam reported in AIR 1958
SC 376, wherein the Apex Court has held that a person
accused of a non-bailable offence may be released on bail, but
he/she shall not be so released if there appear reasonable
grounds for believing that he/she has been guilty of an offence
punishable with death or life imprisonment.
19. I would also like to take a cue from the law laid down in
the case of Sanjay Sharma V. State of J&K, reported in 2003 SLJ
(II) 388, which lays down that the jurisdiction to grant bail has
to be exercised on the basis of well settled principles having
regard to the circumstances of each case and not in an
arbitrary manner. While granting the bail, the Court has to
keep in mind the nature of accusations and the nature of
evidence in support thereof. Severity of the punishment which
conviction will entail, the character behavior means and
standing of the accused, circumstances which are peculiar to
the accused, reasonable possibility of securing the presence of
accused at the trial, reasonable apprehension of the witness
being tempered with, the larger interest of the public or state
and other similar considerations. It is also to be kept in mind
that for the purpose of granting bail, legislature has used
words "reasonable, ground for believing instead of evidence
which clearly envisages that the Court dealing with the grant
of bail can also satisfy itself as to whether there is a
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genuinecaseagainst the accused and the Prosecution is able to
produce prima facie evidence in support of the charge. It is
however, not expected at this stage, to have the evidence
establishing the guilt of the accused beyond reasonable doubt.
Of course, the reasons must be recorded, but without
discussion of merits and demerits of the application. It has
been further held by the High Court that "it is trite that many
other considerations which the Court has to take into account
for deciding that the bail should be granted for non-bailable
offence, which are the nature and gravity of the offence.
20. I would also like to take resort to the law propounded in
the case titled Balwan Singh V. State of JK, reported in 2004 (3)
JKJ 606, wherein it has been held that the considerations which
normally weigh with the Court in granting bail in non-bailable
offences, are the nature and seriousness of the offence; the
character of the evidence; circumstances which are peculiar to
the accused; a reasonable possibility of the presence of
accused not being securing at the trial; reasonable
apprehension of the witnesses being tampered with; the larger
interest of the public or the State and other similar factors
which may be relevant in the facts and circumstances of the
case. The discretionary jurisdiction of the Court should be
exercised carefully and cautiously by balancing rights of the
accused and interest of Society. To refuse bail, it is not
necessary that there should be evidence, which would
practically justify a conviction. The accused is not entitled to
be released if there appear reasonable grounds for believing
that he has been guilty of an offence of the specified kind. The
gravity of the offence involved in case of applicant is likely to
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induce him to avoid the course of justice and must weigh with
the Court when considering the question of bail.
21. I would also like to refer to the decision of this Court in
the case of MOHMED SALIM ABDUL RASID SHAIKH V. STATE OF
GUJARAT reported in 2001 [2] GLR 1580, wherein after
considering number of decisions of the Apex Court as well as of
this Court with regard to the scope of Section 438, it has been
observed as under;
"13. There is no scope for present applicant to urge that
he may be saved from disgrace or unwarranted hardship.
While entertaining the anticipatory bail application of the
accused, the Court should consider various aspects such
as;
[i] earlier offences registered against the applicant
accused and the nature thereof including the area of
activity, modus etc. if brought to the notice of the Court;
[ii] gravity of the circumstances in which the offence is
committed. Whether custodial interrogation is, prima
facie, unavoidable ?
[iii] likelihood of the accused fleeing from justice;
[iv] position and status of the accused individually and
also with reference to the victim and witnesses;
[v] likelihood of repetition of similar type of offence;
[vi] whether he would jeopardise his own life being faced
with grief or grim prospects of possible conviction in the
case;
[vii] likelihood of tampering with the evidence or
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witnesses during the process of investigation, status and
stage of investigation;
[viii] plea of false implication on some special vendetta, if
taken.
[ix] other relevant grounds which may apply to facts and
circumstances of that particular case;
22. Similarly, the Apex Court has also considered the scope
of Section 438 in case of DUKHISHYAM BENUPANI, ASSTT
DIRECTOR, ENFORCEMENT DIRECTORATE [FERA] V. ARUN
KUMAR BAJORIA reported in 1998 [1] SCC 52. The relevant
observations made in para-7 are quoted as under :-
"7. It seems rather unusual that when the aggrieved
party approached the High Court challenging the order
passed by a subordinate court the High Court made the
position worse for the aggrieved party. The officials of the
Directorate are now injuncted by the Division Bench from
arresting the respondent and the time and places for
carrying out the interrogations were also fixed by the
Division Bench. Such kind of supervision on the enquiry
or investigation under a statute is uncalled for. We have
no doubt that such type of interference would impede the
even course of enquiry or investigation into the serious
allegations now pending. For what purpose the Division
Bench made such interference with the functions of the
statutory authorities, which they are bound to exercise
under law, is not discernible from the order under
challenge. It is not the function of the Court to monitor
investigation processes so long as such investigation
does not transgress any provision of the law. It must be
left to the investigating agency to decide the venue, the
timings and the questions and the manner of putting
such questions to persons involved in such offences. A
blanket order full insulating a person from arrest would
make his interrogation a mere ritual."
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23. I am at one with the contention raised by learned senior
counsel Mr. Desai that in case if warrant under Section 70 of
the Cr.P.C. is issued against the accused, then the accused
summoned with such a warrant is not entitled to invoke the
extraordinary power. In this regard, I would like to refer to and
rely upon the decision in the case of Srikant Upadhyay vs.
State of Bihar, reported in 2024 (3) JT 569, wherein it has been
observed as under;
"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. "
24. Thus, what is discernible from the above is that while
deciding anticipatory bail application, it is the first duty of the
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Court to see seriousness of the offence, prima facie case and
interest of the society at a large. Therefore, when no special
and compelling circumstances made out before the Court and
no case of false implication of present applicant in the alleged
offence is made out before this Court, I am of the opinion that
discretion should not be exercised in favour of the present
applicant in the peculiar facts and circumstances of the
present case.
25. In view of above discussion and considering the material
on record produced before this Court, I am of the opinion that
there seems to be a prima facie involvement of the present
applicant in the commission of the alleged offence. Thus, this
Court is of the opinion that at this stage of the investigation of
the offence, grant of anticipatory bail in favour of the applicant
is likely to hamper the investigation and investigating agency
is likely to lose an opportunity to exploit all the fact situation,
probabilities or opportunities which the Agency may get during
the custodial interrogation of a person, and therefore, keeping
in mind all the factors, no interference is required at this stage.
The impugned order passed by the trial court rejecting
anticipatory bail application of the applicant is lucid and clear
and, as such, cannot be tinkered with.
26. In the result, the present application, being devoid of any
merit, is hereby rejected. However, it is made clear that the
observations made by this Court herein above at this stage
while deciding the anticipatory bail application, would not
come in the way of the applicant at the time as and when if
ultimately the trial court is proceeded with the trial, and at the
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stage of consideration of regular bail application, if preferred
by the applicant. Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
