Gujarat High Court
Ashish Kapilkumar Nanda vs State Of Gujarat on 8 August, 2025
NEUTRAL CITATION
R/CR.MA/16159/2025 ORDER DATED: 08/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16159 of 2025
(FOR ANTICIPATORY BAIL)
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ASHISH KAPILKUMAR NANDA
Versus
STATE OF GUJARAT
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Appearance:
MR MEHUL A SURATI(7870) for the Applicant(s) No. 1
MR HARDIK SONI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 08/08/2025
ORAL ORDER
1. 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.
11210008250433 of 2025 registered with Sarthana
Police Station for the alleged offences as
mentioned in the FIR.
2. Learned advocate for the applicant has referred to
the FIR and submitted that the FIR is lodged
against total 5 accused persons, wherein the
applicant is shown as accused no.1. He submitted
that after registration of the FIR, the
investigation was put into motion and the police
has arrested three accused persons, whose remand
was sought by filing appropriate application,
however, the said application was strongly opposed
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by the accused contending about the ill-treatment
and third-degree torture at the hands of the
police party, therefore, the said application was
not entertained by the concerned court and taking
cognizance of the said fact, the accused were sent
for medical examination, however, the said
proceeding is pending for adjudication. He
submitted that thereafter, the concerned
Investigating Officer has submitted report for
addition of section under the provision of the
GUJCTOC Act, which was allowed by the court
concerned and thereby added the sections of
GUJCTOC Act, however, the accused are under
process of challenging the said order before the
competent court.
3. Learned advocate submitted that at the time of
invoking charge of the provision of the GUJCTOC
Act, certain basic, essential and requirements to
satisfy the ingredients of the alleged offence are
required to be attracted, however in the present
case on hand, admittedly, only one offence is
registered against the applicant, therefore, the
said provision is not at all applicable so far as
the present applicant is concerned. He referred to
the findings given by the learned Judge concerned
while rejecting bail application preferred by the
applicant and submitted that while rejecting the
said application, the learned Judge concerned has
much harped upon the provision of the GUJCTOC Act,
however as stated above, admittedly the said
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provision is not at all applicable qua the
applicant. He further submitted that at this
juncture, without admitting the role attributed to
the present applicant for the sake of arguments,
if the allegations and accusation leveled against
the applicant are accepted as it is in its
entirety, even though, it can be said that basic,
essential and requisite requirement to satisfy the
ingredients of the alleged offences under the
provision of GUJCTOC Act are not made out,
therefore, at the time of deciding the bail
application of the applicant, the learned Judge
concerned ought not to have relied upon the said
provision as bar under Section 20(3) of the
GUJCTOC Act would not be applicable so far as the
role of the present applicant is concerned.
4. Learned advocate submitted that in fact, the
matter is amicably settled between the parties and
on the strength of the said settlement, a quashing
petition has been preferred before this Hon'ble
Court, which is pending for adjudication. He
further submitted that considering the aforesaid
facts, custodial interrogation at this stage is
not necessary and the applicant will keep herself
available during the course of investigation,
trial also and will not flee from justice. He on
instructions submitted that the applicant is ready
and willing to abide by all the conditions
including imposition of conditions while releasing
the applicant on anticipatory bail.
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5. At this stage, learned advocate has relied upon
following decisions,
(1) the decision of the Hon'ble Supreme Court
in case of Mahipal Singh Vs. CBI & Anr.,
delivered in Crimianl Appeal No.682/2014 (@
SLP (Criminal) No.6401 of 2012) on
27.03.2024;
(2) the judgment of the Hon'ble Bombay High
Court in case of Somsay Dalasay Madvi Vs.
National Investigating Agency & Anr.
delivered in Criminal Appeal
No.472/202311.06.2024;
(3) the judgment of the Hon'ble Bombay High
Court in case of Surjitsingh Bhagatsingh
Gambhir, delivered in Writ Petition
No.913/2019 on 13.09.2019;
6. Referring to the aforesaid decisions, it is
submitted that the case of the applicant is
squarely covered by the said decision, therefore
considering the proposition of law as laid down in
the aforesaid decision, the discretion may be
exercised in favour of the applicant. It is,
therefore, urged that that considering the above
facts, the applicant may be granted anticipatory
bail.
7. Learned Additional Public Prosecutor, Mr. Soni
appearing for the respondent - State of Gujarat
has opposed the present application with a
vehemence and submitted that the applicant is
actively involved in commission of crime and his
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role in the commission of crime is clearly spelt
out from the investigation papers collected so
far. He submitted that if the Hon'ble Court would
make cursory glance upon contents of the FIR, in
that event, it is found out that there was
monetary transaction between the parties and,
thereafter, disputes have been cropped up, however
the accused have in connivance with each other
have formed an unlawful assembly and reached the
place of occurrence armed with deadly weapons and
assaulted the complainant and other persons with
deadly weapons and caused severe injuries,
therefore, they were admitted in the hospital and
treatment was given and the medical certificates
of those victims clearly goes on to show the
daring act upon the victims and the severe
injuries sustained by them. He further submitted
that in fact, physical movement of the applicant
armed with iron pipe is clearly recorded in the
CCTV footage, which has already been collected
during the course of investigation. He further
referred to the statements of the co-accused
recorded under Section 164 of the CrPC before the
concerned Magistrate, which clearly goes on to
show that the present applicant is directly
involved in the commission of crime. He further
submitted that in fact, against the main accused,
Manish @ Kukari, more than 23 offences have been
registered and and against the syndicate also,
more than 20 offences have been registered and at
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the time of submitting report by the concerned
Investigating Officer before the concerned court.
He further submitted that in past, the applicant
was convicted by the competent court and,
thereafter, his case for remission was considered
by the authority concerned and after releasing
from the jail, he has once again indulged into
such type of antisocial activities, which clearly
goes on to show his criminal mind. He further
submitted that not only that, by administering
threats and using their muscle powers, the accused
have created atmosphere of terror in general
public and the statements of the witnesses in that
regard have already been recorded, which clearly
goes on to show the involvement of the applicant
in the commission of crime.
8. Learned APP has relied upon the decision of
Hon'ble Supreme Court in the case of Zakir Abdul
Mirajkar Vs. the State of Maharashtra & Ors. ,
rendered in Criminal Appeal No.1125 of 2022 and
submitted in the said case, it has been
specifically observed by the Hon'ble Supreme Court
that, 'it is settled law that more than one charge
sheet is required to be filed in respect of the
organized crime syndicate and not in respect of
each person who is alleged to be a member of such
a syndicate'. It is also submitted that the grant
of bail is not a licence for committing any number
of crimes and though bail is related to liberty of
a person, misuse of liberty is not justifiable and
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crimes, which are not targeted against an
individual but perpetrated against society must be
viewed quite differently. Thus, from the aforesaid
decision, it is clear that requirement of
registration of more than one charge-sheet, as per
the provisions of GUJCTOC Act, would be in respect
of organized crime syndicate and not in respect of
each person who is alleged to be a member of such
syndicate. He has also placed reliance upon the
decision of the Hon'ble Supreme Court in case of
Abhishek Vs. State of Maharashtra, reported in
(2022) 8 SCC 282. It is, therefore, urged that the
present application may not be entertained as he
is evading his arrest at the hands of the
concerned Investigating Officer.
9. Having heard the learned advocates appearing for
the parties and perusing the investigation papers,
it is equally incumbent upon the Court to exercise
its discretion judiciously, cautiously and
strictly in compliance with the basic principles
laid down in a plethora of decisions of the
Hon'ble Apex Court on the point. It is well
settled that, among other circumstances, the
factors to be borne in mind while considering an
application for bail are (i) the nature and
gravity of the accusation; (ii) the antecedents of
the applicants including the fact as to whether he
has previously undergone imprisonment on
conviction by a Court in respect of any cognizable
offence; (iii) the possibility of the applicants
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to flee from justice; and (iv) where the
accusation has been made with the object of
injuring or humiliating the applicants by having
him so arrested. Though at the stage of granting
bail an elaborate examination of evidence and
detailed reasons touching the merit of the case,
which may prejudice the accused, should be
avoided.
10. It is required to be noted that normal procedure
prescribed for curtailing the right to life &
liberty, is that the investigating officer can
arrest the accused even without warrant. No doubt
this Court has extraordinary power to protect an
innocent person. However, this power has to be
exercised by the Courts with due circumspection.
11. Having heard learned advocates for the parties and
having considered the allegations leveled in the
FIR, it is found out that an FIR came to be
registered for the alleged incident alleging inter
alia that there was money transaction between the
complainant and the accused, which the complainant
was demanded and as they did not want to return it
back, the accused have formed an unlawful assembly
and reached the place of occurrence armed with
deadly weapons, where they assaulted the
complainant and other witnesses with stick and
iron pipe and caused them severed injuries and
thereby the accused have committed alleged offence
and the aforesaid FIR has been lodged. I have
considered the allegations leveled in the FIR and
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found out that specific name and role is clearly
mentioned by the complainant in the FIR. Further
on careful examination of the material available
on record, which are supplied by learned APP
during the course of hearing, it is found out that
there are ample material and evidence collected by
the concerned Investigating Officer during the
course of investigation, which clearly goes on to
show the involvement of the applicant in the
commission of crime in connivance with other
accused persons. Over and above that, as pointed
out by learned APP, CCTV footage of the place of
occurrence has been collected by the IO, which
clearly goes on to show the presence of the
applicant at the place of occurrence armed with
iron pipe along with other accused, therefore, it
cannot be said that the applicant has not
committed alleged offence. Even in the statements
of the co-accused recorded under Section 164 of
the CrPC, who have been arrested, wherein they
have categorically stated about the involvement of
the applicant in the commission of crime.
12. Over and above that, it is also found out from the
investigation papers that the applicant in
connivance with other accused persons is running
syndicate and with the help of their muscle power,
they are creating an atmosphere of terror in
general public and they are organizing crime to
dupe the innocent persons under the treats and
because of their antisocial activity, against the
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main accused, Manish @ Kukari, more than 23
offences have been registered and and against the
syndicate, more than 20 offences have been
registered and at the time of submission of report
for addition of the charge under the GUJCTOC Act,
all those facts have been specifically mentioned
and after considering all those set of documents,
the learned Judge has allowed the said report.
Thus prima facie, the offence is made out,
therefore, the learned Judge concerned has rightly
applied the provision of Section 20(3) of the
GUJCTOC Act while rejecting the bail application
of the applicant. Not only that, from the above
fact, it seems that the applicant is evading his
arrest at the hands of the concerned Investigating
Officer.
13. It is required to be noted at this stage that the
submission has been made by learned advocate for
the applicant with regard to filing of the
quashing petition on the ground of settlement,
however, the said quashing petition on the ground
of settlement has not been entertained by the
Coordinate Bench of this Court and the said
quashing petition has already been withdrawn by
the accused.
14. The term 'anticipatory bail' is not defined under
the Bharatiya Nagarik Suraksha Sanhita, 2023, but
it allows a person apprehending arrest to apply
for bail. Section 482 of the BNSS, 2023 with
'Direction for grant of bail to person
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apprehending arrest'. According to this Section,
"Where any person has reason to believe that he
may be arrested on an accusation of having
committed a non-bailable offence, he may apply to
the High Court or the Court of Session for a
direction under this section that in the event of
such arrest he shall be released on bail; and that
Court may, after taking into consideration, inter
alia, the following factors, namely:-
→ the nature and gravity of the accusation;
→ the antecedents of the applicant including
the fact as to whether he has previously
undergone imprisonment on conviction by a
Court in respect of any cognizable offence;
→ the possibility of the applicant to flee from
justice; and
→ where the accusation has been made with the
object of injuring or humiliating the
applicant by having him so arrested, either
reject the application forthwith or issue an
interim order for the grant of anticipatory
bail:
15. Thus if the aforesaid facts are taken into
consideration, in that event, it is found out that
the allegations and accusation leveled against the
applicant are very serious; the applicant is
having antecedent and even in past, he was
convicted by the competent criminal court; there
is possibility of fleeing away from the justice
and there would be possibility of tampering with
the evidence and hampering with witnesses. Over
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and above that, here in the present case, deadly
assault has been made by the accused upon
complainant and other witnesses and medical
certificates justify the said fact.
16. It is to be noted that in number of cases, the
Hon'ble Supreme Court has held that the power to
grant anticipatory bail is an extraordinary power
and though 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 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 and the Court concerned has to be very
cautious as the grant of interim protection or
protection to the accused in serious cases, which
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.
17. It is well settled that an application preferred
for anticipatory bail is an exceptional remedy to
be granted in exception cases. The parameters and
considerations governing the grant of anticipatory
bail have been explained by the Hon'ble Supreme
Court in number of cases. At this stage, I would
like to rely upon 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
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2005 (4) SCC 303 (iii) P. Chidambaram V/s
Directorate of Enforcement reported in AIR 2019 SC
4198, wherein the Hon'ble Supreme Court has held
held as follows:
"The legislative intent behind the
introduction of Section 438 CrPC is to
safeguard the individual's personal liberty
and to protect him from the possibility of
being humiliated and from being subjected to
unnecessary police custody. However, the
court must also keep in view that a criminal
offence is not just an offence against an
individual rather the larger societal
interest is at stake. Therefore, a delicate
balance is required to be established between
the two rights - safeguarding the personal
liberty of an individual and the societal
interest.
Ordinarily, arrest is a part of
procedure of the investigation to secure not
only the presence of the accused but several
other purposes. There may be circumstances in
which the accused may provide information
leading to discovery of material facts and
relevant information. Grant of anticipatory
bail may hamper the investigation. It may
frustrate the investigating agency in
interrogating the accused and in collecting
the useful information and also materials
which might have been concealed. Success in
such interrogation would elude if the accused
knows that he is protected by the order of
the court. Grant of anticipatory bail,
particularly in economic offences would
definitely hamper the effective
investigation. Pre-arrest bail is to strike a
balance between the individual's right to
personal freedom and the right of the
investigating agency to interrogate the
accused as to the material so far collected
and to collect more information which may
lead to recovery of relevant information. In
this view, it cannot be said that refusal to
grant anticipatory bail would amount to
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denial of the rights conferred upon the
appellant/applicant under Article 21 of the
Constitution of India.
Consequently, power under Section 438
CrPC being an extraordinary remedy, has to be
exercised sparingly; more so, in cases of
economic offences. Economic offences stand as
a different class as they affect the economic
fabric of the society. The privilege of the
pre-arrest bail should be granted only in
exceptional cases. The judicial discretion
conferred upon the court has to be properly
exercised after application of mind as to the
nature and gravity of the accusation;
possibility of the applicant fleeing justice
and other factors to decide whether it is a
fit case for grant of anticipatory bail.
Grant of anticipatory bail to some extent
interferes in the sphere of investigation of
an offence and hence, the court must be
circumspect while exercising such power for
grant of anticipatory bail. Section 438 CrPC
is to be invoked only in exceptional cases
where the case alleged is frivolous or
groundless. Anticipatory bail is to be
granted as a matter of rule and it has to be
granted only when the court is convinced that
exceptional circumstances exist to resort to
that extraordinary remedy".
Having regard to nature of allegations
and stage of investigations, held
investigating agency must be given sufficient
freedom in process of investigation.
Appellant not entitled to anticipatory bail
as the same would hamper the investigation".
18. In case of Pratibha Manchanda and another Vs.
State of Haryana and another reported in (2023) 8
SCC 181, the Hon'ble Apex Court in Paragraph
No.21, observed as under:-
"21. The relief of anticipatory bail is aimed at
safeguarding individual rights. While it
serves as a crucial tool to prevent the
misuse of the power of arrest and protects
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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."
19. At this stage, it is required to be noted that as
this application has been preferred under the
provisions of Section 482 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 for grant of anticipatory
bail, I court would like to refer the decision of
the Hon'ble Supreme Court in the case of Siddharam
Satlingappa Mhetre Vs. State of Maharashtra &
Ors.,, reported in (2011) 1 SCC 694, more
particularly Paragraph Nos.14 & 112, which read as
under :-
"14. It is clear from the Statement of Objects and
Reasons that the purpose of incorporating
Section 438 in the Cr.P.C. was to recognize
the importance of personal liberty and
freedom in a free and democratic country.
When we carefully analyze this section, the
wisdom of the legislature becomes quite
evident and clear that the legislature was
keen to ensure respect for the personal
liberty and also pressed in service the age-
old principle that an individual is presumed
to be innocent till he is found guilty by the
court.
112. The following factors and parameters can be
taken into consideration while dealing with
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the anticipatory bail: The nature and gravity
of the accusation and the exact role of the
accused must be properly comprehended before
arrest is made; the antecedents of the
applicant including the fact as to whether
the accused has previously undergone
imprisonment on conviction by a Court in
respect of any cognizable offence; The
possibility of the applicant to flee from
justice; The possibility of the accused's
likelihood to repeat similar or the other
offences. Whereas the accusation have been
made only with the object to injuring or
humiliating the applicant by arresting him or
her. Impact of grant of anticipatory bail
particularly in cases of large magnitude
affecting a very large number of people. The
courts must evaluate the entire available
material against the accused very carefully.
The court must also clearly comprehend the
exact role of the accused in the case."
20. Thus while taking into consideration the ratio
laid down by the Hon'ble Supreme Court in the case
of Siddharam Satlingappa Mhetre (supra), I have
gone through the contents of the FIR, which is
placed on record and also considered the affidavit
of the investigating officer filed before the
learned Judge concerned opposing the bail
application preferred by the applicant. Upon going
through the contents of the FIR, it appears that
prima facie case is made out against the applicant
and material collected so far suggests the
involvement of the applicant in the commission of
crime. Therefore, the present application deserves
to be rejected.
21. I have also considered the decisions relied upon
by the learned advocate for the applicant, copies
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of which are produced on record. However having
considered those decision, there cannot be any
dispute with regard to the ratio laid down in the
same. However, in the facts and circumstances of
the case on hand and this being discretionary
relief, which requires to be granted judiciously,
the said decisions would be of no help to the
present applicant at this juncture considering the
nature of offence and role attributed to the
applicant at the time of commission of crime.
22. For the foregoing reasons, having regard to facts
and circumstances, peculiar to the instant case,
as have been analyzed hereinabove, there is no
ground for interfering with the order of the
learned Sessions Court rejecting the application
for anticipatory bail. Since his action is nothing
short of defying the lawful orders of the Court
and attempting to delay the proceedings, this
Court does not find any exceptional ground to
exercise its discretionary jurisdiction under
Section 482 of the BNS, 2023 to grant anticipatory
bail. Hence, the present application seeking for
anticipatory bail is hereby rejected.
23. Needless to say that observations and findings
made hereinabove are limited to the decision of
these pre-arrest bail applications, and shall not
influence any other proceedings arise from
impugned FIR.
(DIVYESH A. JOSHI, J.)
Gautam
