Gujarat High Court
Hriday Hareshbhai Solanki vs State Of Gujarat on 14 August, 2025
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Reserved On : 04/08/2025
Pronounced On : 14/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 3420
of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
Yes
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HRIDAY HARESHBHAI SOLANKI & ORS.
Versus
STATE OF GUJARAT
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Appearance:
HARDIKKUMAR D RAO(8174) for the Applicant(s) No. 2
RONITH JOY(9560) for the Applicant(s) No. 1,3
MR MIHIR H PATHAK(5261) 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 waives service of
notice of rule for respondent - State of Gujarat and learned
advocate Mr. Mihir Pathak waives service of notice of rule for and
on behalf of the respondent No.2.
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.11191042230017 of 2023
registered with Satellite Police Station, Ahmedabad City for the
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alleged offences as mentioned in the FIR.
3. The sum and substance of the allegations made in the FIR is
that on 09.02.2020, the complainant along with her husband,
Mukesh, were invited by Karma Resort and Hospitality, i.e, now
known as Valorah Resort and Hospitality LLP, at Courtyard by
Marriott, Satellite, to attend an event organized by Valorah
Resorts and Hospitality LLP. During the said event, the staff of the
aforesaid company briefed the informant and other invitees
therein, regarding various schemes and memberships. It has
been further alleged that it had been explained to the mass
gathered in the event that the Firm (Valorah Resorts and
Hospitality LLP) rendered its services by providing advantageous
holiday bookings to their customers/members in premier hotels
and resorts across various cities of India. It has been alleged that
the complainant, being attracted by one such attracting
membership package wherein by paying an amount of
Rs.1,23,000/- the company promised luxurious stay at their
partnered Resorts for 70 nights for a period of 10 years along
with 6 nights complementary. In addition to which, the company
had also assured bookings in 4 or 5 star resorts or hotel if the
said bookings were done 50 days in advance. The complainant
had expressed her willingness to purchase the said deal and thus,
immediately, on the very next day, i.e, on 10.02.2020, the
complainant went to the office of the Company situated at
Satellite Iscon Emporio, Office No.331, and paid an amount of
Rs.1 Lakh in cash and the remaining amount of Rs.23,000/- by
cheque. In lieu of which, a receipt was handed over by the
company along with a membership number being 11389.
3.1 It has been further alleged that over a period of time,
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whenever she and her husband tried to avail services qua their
membership number provided under the said scheme, the same
was never provided to them. It is also alleged that, despite
paying membership fee, she has not received any services or
hotel bookings from the company and hence she requested for
cancellation of membership and demanded refund of fee.
However, despite several requests being made by her, neither
any refund nor any stay in the assured hotels were provided to
the complainant, and thereby she has been defrauded and
cheated by the company owned and operated by the present
applicant. 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 applicants preferred anticipatory bail
before the trial court, however, the said application was not
entertained and rejected by the trial court.
5. Being aggrieved, the applicants are here before this Court
with the present application.
6. Learned senior advocate Mr. Harshit Tolia assisted by
learned advocate Mr. H.D. Rao appearing for the applicant No.2
submits that the allegations made in the FIR are of such a nature,
for which, custodial interrogation of the applicant No.2 at this
stage is not necessary. He further submits that the applicant No.2
will keep himself available during the course of investigation as
well as the trial proceedings and will not flee from justice. He
further submits that his client is completely innocent and has
been falsely implicated in the present offence. Learned senior
advocate Mr. Tolia also submits that neither his client nor the
other two co-accused persons have committed the alleged
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offence either individually or collectively, and all the allegations
made by the complainant in the complaint are baseless, false and
frivolous one, being filed with an oblique and ulterior motive to
tarnish the reputation of the applicants with a view to circumvent
the civil remedies envisaged in law. Learned senior advocate Mr.
Tolia further submits that, looking to the allegations made in the
FIR, the entire dispute appears to be of a civil nature, which has
been given a colour of criminality with a view to exert pressure
upon the applicants to extort money. He further submits that
there is no iota of evidence that the applicants have either played
fraud or cheated or even duped the complainant with any
intention of making financial gains. Learned senior advocate Mr.
Tolia also submits that the entire agreement between the
applicants and the complainant is a subjective one, and the same
is completely based upon express and undisputed terms and
conditions of the membership agreement, which in no manner,
could either be disregarded or considered in isolation.
7. Learned senior advocate Mr. Tolia further submits that the
applicants are the partners of Valorah Resorts & Hospitality LLP, a
Limited Liability Partnership Firm, which was previously known as
Karma Resorts and Hospitality, which indulges in the travel
business for over past several years, and there are thousands of
members registered at the applicant's Company and they all are
being given bookings subject to the market availability of the
hotels and resorts as per the conditions which are expressly
stated and agreed in the membership agreement. Learned
advocate Mr. Tolia submits that the entire FIR revolves around
the allegation that the complainant has not been provided the
serviced by the applicants' firm as agreed upon between them
though she had paid Rs.1,23,000/- Membership Fee. He submits
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that the said allegations are completely baseless and frivolous
one, as the company of the applicant has never denied services
to the complainant (illegally or without any cogent reason/fault
on the part of the complainant herself), and as of now the
Company is ready and willing to fulfill all its obligations as per the
package availed by the complainant. However, it is upon some
misconception and dissatisfaction to the will of the complainant
that she had decided to terminate the ties from the membership
arrangement in a completely abrupt and adamant manner and
seek recourse of criminal law with alien motives. Learned senior
advocate Mr. Tolia further submits that the impugned FIR is a
clear abuse of process of law, as the same is misconceived on the
ground that, the provisions under which the said FIR has been
filed is dehors to the settled position of law and even if read on
its face value, does not specify any role of the applicants who
could be said to have committed any acts amounting to the
alleged offence. The alleged incident at the most would fall under
the ambit of deficiency of service for which there exists a
separate process and mechanism before the Consumer Forum
under the Consumer Protection Act, and even as per the
agreement executed between the complainant and Valorah, the
parties have agreed to settled their disputes via arbitration,
which has not been availed by the complainant, and straight way
filed the present false and frivolous complaint to tarnish the
image and reputation of the applicants' Company. Learned
senior advocate Mr. Tolia submits that even if the allegations
made in the FIR are to be read at their face value, the same do
not constitute the offence as alleged in the FIR.
8. Learned senior advocate Mr. Tolia submits that as of now,
the applicants' company has provided all kinds of services to its
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clients, as assured by the Company, however, as the
complainant failed to comply with the mandatory terms and
conditions, the applicants' company could not provide services to
the complainant. Moreover, as per the agreement, the members
shall not be entitled to get refund of Admission Fee which
constitutes 60% of the membership price, as the same is non-
refundable, and the members shall be entitled to get 40%
enrollment fee subject to deductions as per the terms and
conditions of the contract. Further, the bookings are subject to
availability of the hotels and resorts. Learned senior advocate
Mr. Tolia further submits that, as per the terms and conditions of
the contract, under any given circumstances, there must be a 15
days prior notice/information from the actual date of the stay and
at least there must be minimum 07 days prior notice by any of
the members from the date of actual stay. Here, in the case at
hand, the complainant made an intimation to the company only
five days prior to her actual stay, which is contrary to the terms
and conditions of the agreement, and therefore, services could
not be provided to the complainant. Moreover, on other two
occasions, the services could not be provided to the complainant,
as the chosen resort was not affiliated with the applicant's
Company, and therefore, by no stretch of imagination it can be
said that, there was any fault on the part of the applicants'
company. Learned senior advocate Mr. Tolia submits that during
the interregnum, number of persons have successfully utilized
the services of the Company, and the list of those persons has
also been produced. He submits that even certain members
have made request that they don't want to continue with the
membership of the Company, and accordingly, refunds were also
made to those clients, a list of which, has also been produced.
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Learned senior advocate Mr. Tolia further submits that, in fact,
total four complaints have been registered against the applicant,
out of which, in one FIR, they have already been enlarged on
bail, whereas in rest of the two cases, the matter has been
amicably settled between the parties and the FIRs have been
quashed, and the present FIR is the last matter pending. Learned
senior advocate Mr. Tolia further submits that the entire case of
the prosecution hinges upon documentary evidences, and all the
documentary evidences have already been supplied to the
investigating officer by the complainant and their statements
have also been recorded, and as such, now no custodial
interrogation of the applicants is required.
9. In such circumstances, referred to above, learned senior
advocate Mr. Tolia prays that there being merit in the present
application, the same be allowed and the applicants be enlarged
on bail.
10. Learned advocate Mr. Ronith Joy appearing for the applicant
Nos.1 and 3 submits that, in fact, the present application was
filed by all the three accused persons, however, during the
pendency of the present proceedings, all the three accused
persons were protected by a Coordinate Bench of this Court, and
while giving such protection, they were directed to appear before
the concerned investigating officer for the purpose of recording
their statements as also to supply certain necessary documents.
Thereafter, on the next date of hearing, the concerned Public
Prosecutor brought to the notice of the Court that the applicant
No.2 did not remain present before the investigating officer
despite specific direction being issued by the Court. Thus, as soon
as the said fact came to the notice of learned advocate Mr. Joy,
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he refused to appear on behalf of the applicant No.2, and
therefore, the applicant No.2 approached the learned advocate
Mr. H.D. Rao, who then filed his appearance on behalf of the
applicant No.2. Learned advocate Mr. Joy further submits that
there is a gross delay of almost three years in registering the FIR,
and there is no plausible explanation worth the name about such
a delay in registering the FIR. Learned advocate Mr. Joy also
submits that, even if the entire allegations made in the FIR are to
be read in toto, the entire dispute appears to be of a civil nature,
which is trying to be given the veneer of criminality by filing the
present FIR with a view to exert pressure upon the applicants to
extort money from them. Moreover, at the time of getting the
membership of the Company, each and every member got
thoroughly acquainted about the policy of the Company as well
as terms and conditions of the agreement, and after getting
approval from the concerned member, the agreement got
executed. He further submits that as per one of the clauses in
the agreement, in case of any dispute being arisen between the
Company and the member, the same has to be resolved through
Arbitration, however, in the case on hand, instead of resolving
the dispute through Arbitration, the complainant has directly filed
the present FIR, and thereby has committed a breach of contract.
Further, as per the terms and conditions of the agreement, if
member wants to avail the services of the Company, then they
have to intimate about the same to the Company seven days
prior for the date of actual stay, however, in the case on hand,
on every occasion, the complainant approached the Company at
the fag end, i,e, just few days before the actual stay, and
therefore, services could not be provided to the complainant.
Moreover, the said scheme was introduced in the year 2020, and
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at that point of time, due to spread of Covid-19 in the whole
Country, due to certain restrictions from the Government, for
some time, they could not be able to extend proper services to
their clients, as assured by them, which at the most can be said
to be deficiency in the services, and the same would never fall
under the category of criminal breach of trust. Learned advocate
Mr. Joy submits that he would like to adopt rest of the arguments
as canvassed by the learned senior advocate Mr. Tolia, and as
such, prays that, the present application, being devoid of any
merit, be rejected.
11. On the other hand, the present application has been
vehemently opposed by learned advocate Mr. Mihir Pathak
appearing for the original complainant. He submits that the
present applicants are the partners and Directors of the Karma
Resort & Hospitality, now Valorah Resorts & Hospitality LLP. He
submits that it is a not a simple case of a dispute between the
two parties, but it is a case where three persons were gathered
and established an LLP, and started business of providing stays in
luxurious hotels and resorts, which is called time sharing business
and the same is not an Indian culture, but it has come from
United State and European countries, and the same has yet not
been recognized in India. Learned advocate Mr. Pathak also
submits that the applicant No.2-Alpesh Rao was an ex-employee
of Club Mahindra, a company doing the said time sharing
business, and he was working as a Manager in the Club Mahindra
during the period between 2012 and 2019, and thus, he was very
well aware about the fact that the said business is not regularized
by the Indian Government, who then resigned from the said
Company in March, 2019, and immediately in August, 2019, he
along with the other two co-accused, started their own Company
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in the name and style as Karma Resort & Hospitality, which was
then converted into Volorah Resorts & Hospitality LLP, and the
purpose behind the same was to escape from any liability, and
after starting the said Company, the applicants started giving
very lucrative offers to the customers, i.e, a very low budget
offers as compared to other similarly situated Companies.
Learned advocate Mr. Pathak also submits that even the
Company of the applicants obtained loan from the ICICI Bank,
however, as the Company failed to repay the loan amount, its
property was attached by the ICICI Bank. Moreover, they did not
even pay the required Municipal taxes, and therefore, the VMC
also sealed the business premises of the applicants. He also
submits that even the Employees Provident Fund of
Rs.46,81,203/- had also not been deposited by the applicants'
Company. Thus, all the above stated sequence of events
indicates that the intention of the applicants to start this business
was to depu the gullible people. Learned advocate Mr. Pathak
further submits that there are 7000 members in the applicants'
company, and the modus operandi of the applicants' Company is
that, out of those 7000 members, they are providing services to
some of the members repeatedly, and by doing so, they are
trying to establish a case that they have provided their services
to many members, which is not correct, because if the list as
produced by the applicant is being seen, then it appears that
they have provided repeated services to the very same
members.
12. Learned advocate Mr. Pathak has drawn the attention of
this Court to Page No.273 of the memo of the applicant and
submits that initially, when the applicants started their business,
with a view to come in light in the market, they started their
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business in the name of one very well known Company of Goa,
i.e, Karma Resorts & Hospitality LLP, and for that, a trade mark
suit was filed by Prestige Holidays Resort LLP, i,e, the original
Company from Goa, wherein the applicants had tendered
unconditional apology, and after that, the applicants coverted
the name of their Company as Valorah Resorts & Hospitality LLP.
Thus, it appears that from day one, the applicants started
committing the irregularities and from the very inception, their
intention was to dupe the gullible people making an impression
that they are the part of one well known Company of Goa.
Learned advocate Mr. Pathak also submits that there are in all 75
complaints have been filed before the Consumer Forum in
Ahmedabad and 45 at Surat against the present applicants, and
many others at the differents places of State of Gujarat.
Moreover, there are total four FIR have been filed against the
present applicants, out of which, two FIRs have already been
quashed on the basis of the settlement arrived at between the
parties. Learned advocate Mr. Pathak submits that believing upon
the words of the applicants, the complainant got the membership
in the Company of the applicants by paying an amount of
Rs.1,23,000/-, in lieu of which, a Membership Car was also issued
in favour of the complainant. He submits that like the
complainant, believing the words of the applicants, many other
witnesses had also joined the membership in the said Company
by paying certain amounts, and it is to be worth noting that,
different amounts were being taken from each of the members as
a Membership fee. Moreover, when complainant wanted to go to
Madhuban Resort, Anand and Kumbhalgarh, and requested for
the accommodation, the Company of the applicants could not be
able to provide such services to the complainant. He submits
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that, like the complainant, number of other witnesses/members
have also raised the same grievance that they have not been
provided the accommodations as sought for by them as a
member of the Company, and to the said effect, number of
members/witnesses have also filed affidavit specifically stating
therein that whenever they asked to book a particular resort, the
Company refused to give them bookings either due to non-
availability of resort or for some other reasons. Even, no refund
has been made to those members also. Learned advocate Mr.
Pathak submits that even he is also the victim of the scheme
floated by the applicants' Company, and he has also filed an
affidavit to that effect. Thus, it appears that not only the
complainant, but many other persons who are the experts in their
respective fields, but can be said to be the laymen so far as their
wisdom regarding law is concerned, have also raised a grievance
that they have been duped and cheated by the applicants.
Learned advocate Mr. Pathak submits that all the accused
persons, in collusion with each other, with a ill-intention to cheat
and defraud number of persons under the guise of giving
luxurious holidays in the various hotels and resorts across the
country, have pocketed a huge amount of money running into
crores of rupees from number of persons without providing them
the facilities as promised by them. The said amount is still to be
recovered and the investigation is still underway, and therefore,
the custodial interrogation of the applicants are very much
necessary. In such circumstances, referred to above, learned
advocate Mr. Pathak prays that there being no merit in the
present application, the same be rejected.
13. This application has also been opposed by learned APP Mr.
Soni appearing for the respondent-State. He submits that number
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of FIRs have been registered against the applicants in the
different places of the State of Gujarat. He also submits that the
amount involved in the present case is quite huge, and therefore,
which is still to be recovered, and therefore, the custodial
interrogation of the applicants is very much needed. Learned
APP further submits that initially, the FIR came to be lodged
under the different penal provisions, however, during the course
of investigation, on the basis of certain materials collected by the
investigating officer, it filed a report before the learned
Magistrate for addition of Section 3 of the G.P.I.D Act, which was
allowed by the learned Magistrate, and therefore, Section 3 of the
G.P.I.D Act came to be incorporated, and as such, there is a bar
under Section 17(2) of the G.P.I.D Act in granting anticipatory bail
applications by the Designated Court for the offence under the
said Act. He further submits that almost all the points have been
covered by the learned advocate Mr. Pathak and he is adopting
the arguments canvassed by him, and prays not to exercise
discretion in favour of the applicants.
14. Heard the learned counsel appearing for the parties and
perused the record.
15. It is well settled that, among other circumstances, the
factors to be borne in mind while considering an application for
bail are (i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation; (iii) severity of the
punishment in the event of conviction; (iv) danger of the
accused absconding or fleeing, if released on bail; (v)
character, behaviour, means, position and standing of the
accused. Though at the stage of granting bail execution and
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appreciation of evidence is not permissible. Hence, custodial
interrogation is required.
16. It appears from the record that there is a huge scam of
crores of rupees alleged to have been committed by the
present applicants under the guise of providing stay in
luxurious hotels and resorts across the Country, and thereby
the complainant has been duped with an amount of
Rs.1,23,000/-. It also appears from the record that not only the
complainant, but number of other persons have also been
duped by the applicants with different amounts by adopting
the same modus operandi, and they all have also filed an
affidavit to the effect that despite amount being taken from
them, they have not been provided with the facilities as
promised by the applicants as and when they tried to avail the
services of the Company, and also no refunds have been made
to them also. Further, there are statements of numbers of
witnesses recorded by the investigator, wherein they have
clearly stated they have also been duped by the applicants in
the same manner. Further, the offence with which the
applicants are charged with is an economic offence and is
against the interest of the society. The record further reveals
that, from the very inception, the applicants started
committing irregularities viz. Initially they snatched away the
name of one of the well known Company of Goa, and give the
same name to their Company, for which, trade mark suit also
came to be filed against the applicants' Company by the
original company situated at Goa. Thus, from the materials
placed on record, prima facie, involvement of the present
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applicants are found to be there in the commission of the
crime.
17. Moreover, the applicants have also been charged with
the offence under the provisions of the G.P.I.D Act, and the
exercise of power under Section 482 of the BNSS, 2023
(Section 438 of the Cr.P.C.) is inapplicable in the offences
under the provisions of the G.P.I.D. Act. In this regard let me
refer to and rely upon the decision of this Court in the case of
Geetaben Manishkumar Shah vs. State of Gujarat, Special
Criminal Application No.212 of 2018, decided on 15.03.2028,
wherein in Para-44, this Court has observed as under;
"44. The entire argument inviting me to specifically
decide whether a court of a Designated Judge, for a
certain purpose, is a court of Magistrate or a court of
Session revolves round a mistaken belief that a
Designated Judge has to be one or the other, and must fit
in the slot of a Magistrate or a Court of Session. Such an
approach would strangulate the functioning of the court
and must be eschewed. Shorn of all embellishment, the
court of a Designated Judge is a court of original criminal
jurisdiction. As a court of original criminal jurisdiction in
order to make it functionally oriented some powers were
conferred by the statute setting up the court. Except
those specifically conferred and specifically denied, it has
to function as a court of original criminal jurisdiction not
being hide bound by the terminological status description
of Magistrate or a Court of Session. Under the Code, it will
enjoy all powers which a court of original criminal
jurisdiction enjoys save and except the ones specifically
denied. Without causing any violence to the words of
section 17(2) of the Act, 2003, the plain reading of the
same would indicate that the Court of the original
criminal jurisdiction has been denuded of the power to
grant anticipatory bail to an accused under section 438 of
the Cr.P.C. To put it in other words, the power to grant
anticipatory bail appears to have been specifically denied
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to the court of the original criminal jurisdiction."
18. It goes without saying that the alleged offence of
misappropriating Crores of rupees of the complainant as well
as the other gullible people is quite grave in nature. Hence,
while it is extremely important to protect the personal liberty
of a person, it is equally incumbent upon me to analyze the
seriousness of the offence and determine if there is a need for
custodial interrogation.
19. In Siddharam Satlingappa Mhetre v. State of
Maharashtra, (2011) 1 SCC 694, the Supreme Court carefully
considered the principles established by the Constitution
Bench in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2
SCC 565. After a thorough deliberation, the Supreme Court
arrived at the following conclusion:
"112. The following factors and parameters can be taken
into consideration while dealing with anticipatory bail:
(i) The nature and gravity of the accusation and the exact
role of the accused must be properly comprehended
before arrest is made;
(ii) 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;
(iii) The possibility of the applicant to flee from justice;
(iv)The possibility of the accused's likelihood to repeat
similar or other offences;
(v) Where the accusations have been made only with the
object of injuring or humiliating the applicant by arresting
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him or her;
(vi)Impact of grant of anticipatory bail, particularly in
cases of large magnitude affecting a very large number
of people.
xxx xxx xxx"
20. In Sushila Aggarwal v. State (NCT of Delhi), (2018) 7 SCC
731, the Constitution Bench of the Hon'ble Apex Court
reaffirmed that when considering applications for anticipatory
bail, courts should consider factors such as the nature and
gravity of the offences, the role attributed to the applicant, and
the specific facts of the case.
21. In Satpal Singh vs. State of Punjab, (2018) 13 SCC 813,
the Supreme Court has held that the satisfaction of the court
for granting protection under Section 438 Cr.P.C. is different
from the one under Section 439 Cr.P.C. while considering
regular bail.
22. In Pratibha Manchanda and another Vs. State of Haryana
and another, (2023) 8 SCC 181, the Supreme Court has opined
that "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
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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."
23. This Court after considering number of decisions of the
Apex Court as well as of this Court, has observed in case of
MOHMED SALIM ABDUL RASID SHAIKH V. STATE OF GUJARAT
reported in 2001 [2] GLR 1580 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
witnesses during the process of investigation, status and
stage of investigation;
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[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; "
24. 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."
25. Coming to the case on hand, from the allegations levelled
in the FIR and the materials placed on record, it appears that
the very serious allegations of misappropriation of crores of
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rupees have been made against the applicants. Moreover, the
present case also falls within the category of economic
offences and the amount involved in the present case is quite
huge, and it is trite law that in economic offences, benefit of
pre-arrest bail should not be extended in favour of the accused
in a casual manner. Moreover, there is a bar under Section
17(2) of the G..P.I.D Act in granting pre-arrest bail to the
accused charged under the provisions of the said Act. The
amount involved in the present case is also quite huge, and
the offence as alleged is also punishable with life
imprisonment. Thus, at this stage, in my view, custodial
interrogation of the applicants is very much necessary.
26. Lastly, it may be noted that as held in catena of
decisions, the economic offences constitute a class apart and
need to be visited with a different approach in the matter of
bail. The economic offences having deep-rooted conspiracies
and involving huge loss of public funds need to be viewed
seriously and considered as grave offences affecting the
economy of the country as a whole and thereby posing serious
threat to the financial health of the country. Undoubtedly,
economic offences have serious repercussions on the
development of the country as a whole. To cite a few
judgments in this regard are Y.S. Jagan Mohan Reddy vs.
Central Bureau of Investigation, reported in (2013) 7 SCC
439, Nimmagadda Prasad vs. Central Bureau of
Investigation, (2013) 7 SCC 466, Gautam Kundu vs.
Directorate of Enforcement (Prevention of Money-
Laundering Act), Government of India Through Manoj
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Kumar, Assistant Director, Eastern Region, (2015) 16 SCC
1, State of Bihar and Another vs. Amit Kumar alias
Bachcha Rai, (2017) 13 SCC 751. The Supreme Court taking
a serious note with regard to the economic offences had
observed as back as in 1987 in case of State of Gujarat vs.
Mohanlal Jitamalji Porwal and Another, (1987) 2 SCC 364
as under:-
"5... The entire community is aggrieved if the economic
offenders who ruin the economy of the State are not
brought to books. 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 collar crimes with a
permissive eye unmindful of the damage done to the
National Economy and National Interest..."
27. Moreover, when the Court is satisfied that a prima facie
case of custodial interrogation of the accused is made out by
the prosecution for securing the incriminating materials from
the information likely to be received from the accused, then
the power under Section 482 should not be exercised in a
routine manner. The presence of the applicants, in the
peculiar facts and circumstances of the present case, seems to
be needed to uncover the truth. Further, the discretion under
Section 482 cannot be exercised with regard to offences
punishable with death or imprisonment for life, unless the
court at that very stage is satisfied that such a charge appears
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to be false or groundless. The larger interest of the public and
State demand that in serious cases like economic offences
involving cheating and misappropriation of huge volume of
amount, the discretion under Section 482 of the BNSS should
not be exercised.
28. Thus, what is discernible from the above is that while
deciding anticipatory bail application, it is the first duty of the
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 are made out and no case of
false implication of present applicants in the alleged offence is
made out before this Court, I am of the opinion that this Court
should refrain itself from exercising its discretionary powers in
favour of the present applicants at this stage.
29. Further, the present applicants are 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.
30. In view of above discussion and considering the materials
produced before this Court, I am of the opinion that there
seems to be a prima facie involvement of the present
applicants in the commission of the alleged offence. Thus, this
Court is of the opinion that at the initial stage of the
investigation of the offence, grant of anticipatory bail in favour
of the applicants is likely to hamper the investigation and
investigating agency is likely to lose an opportunity to exploit
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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
applicants is just and proper and does not require any
interference at the end of this Court.
31. 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 applicants at the time as and when if
ultimately the trial court is proceeded with the trial, and at the
stage of consideration of regular bail application, if preferred
by the applicants. Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
