Gujarat High Court
Shaikh Mohammad Iqbal Ibrahim vs State Of Gujarat on 27 February, 2025
NEUTRAL CITATION
R/CR.MA/3292/2025 ORDER DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO.
3292 of 2025
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SHAIKH MOHAMMAD IQBAL IBRAHIM
Versus
STATE OF GUJARAT
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Appearance:
VASIMRAJA A KURESHI(8609) for the Applicant(s) No. 1
MR KRUTIK PARIKH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 27/02/2025
ORAL ORDER
1. By way of the present application under Section 482 of the BNSS,
the applicant-original accused has prayed to grant anticipatory bail in the
event of his arrest in connection with the FIR being C.R.No.
11196003240772 of 2024 registered at Manjalpur Police Station,
Vadodara, for the offences punishable under Sections 316 (2), 318 (4),
61(2), 111(3) and 111(4) of the BNS.
2. Learned counsel for the applicant submits that the applicant has
been falsely enroped in the offence. There is a delay in registration of FIR
and for that, there is no explanation given by the complainant. The
allegations made in the FIR are general and vague and only with a view to
tarnish the image of the applicant, impugned complaint is lodged. The
applicant is ready and willing to cooperate with the investigation if
anticipatory bail is granted. He further submitted that the co-accused are
released on regular bail and therefore, on the ground of parity also, bail
may be granted. The applicant has no any past antecedent. Except this,
no any other or further submissions made by learned counsel for the
applicant. He further submitted that the nature of allegations are such
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for which custodial interrogation at this stage is not necessary. Besides,
the applicant is available during the course of investigation and will not
flee from justice. In view of the above, the applicant may be granted
anticipatory bail.
Learned counsel for the applicant has relied on the decision of the
Hon'ble Supreme Court in case of Sushila Aggarwal v. State (NCT of
Delhi) reported in (2020) 5 SCC 1.
3. Per contra, learned APP has vehemently opposed the application
and submitted that the present applicant is master mind of the offence
and in aid of Section 120(b) of Indian Penal Code, 1860, allegation against
the applicant is that, he has received Rs.1.75 crore from the complainant
by winning over his trust and committed offence of criminal breach of
trust. He has further submitted that, the complainant had sold out his
property situated at Bengaluru (Karnataka) and received sale
consideration in cash and he wanted to convert the said cash money into
white money. Therefore, the applicant by winning his trust, assured the
complainant that if he gives the said cash amount to him, he will return
the amount through RTGS and thereby, his cash amount will become
white money. Thereby, the applicant obtained cash money of the
complainant and then did not transfer to the account of the complainant.
Said amount is yet to be recovered from the applicant and it would
adversely affect f the case of the prosecution if he grants bail. In view of
the same, custodial interrogation of the applicant is required. He,
therefore, submits that the application be dismissed.
4. This Court has considered the rival submissions made by learned
counsel for both the sides and considered the material placed on record.
5. The criteria to grant anticipatory bail and regular bail has been laid
down by the Apex Court in various decisions. While criminal
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administration of justice disturbed, arrest is a part of investigation. After
the arrest of the accused when substantial part of the investigation
including remand gets over, then the Court has to exercise jurisdiction
considering the evidence collected during investigation. It is needless to
say that Section 438 of the Code is pre-arrest bail as there is a part of
investigation and importance of the arrest is time and again discussed by
the Hon'ble Apex Court. When the involvement of the accused is prima
facie revealed and if allegation is not levelled that to defame him or to
tarnish his image, the Court has to exercise jurisdiction, but to seek
anticipatory bail is not an extraordinary jurisdiction and absolute right of
the accused.
6. The applicant is facing charge of Section 111 of BNS, 2023. Section
111 (i),(ii) and (iii) provides as under:-
"(i) "organized crime syndicate" means a group of two or more persons
who, acting either singly or jointly, as a syndicate or gang indulge in any
continuing unlawful activity;
(ii) "continuing unlawful activity" means an activity prohibited by law which
is a cognizable offence punishable with imprisonment of three years or
more, undertaken by any person, either singly or jointly, as a member of an
organised crime syndicate or on behalf of such syndicate in respect of
which more than one charge-sheets have been filed before a competent
Court within the preceding period of ten years and that Court has taken
cognizance of such offence, and includes economic offence;
(iii) "economic offence" includes criminal breach of trust, forgery,
counterfeiting of currency-notes, bank-notes and Government stamps,
hawala transaction, mass-marketing fraud or running any scheme to
defraud several persons or doing any act in any manner with a view to
defraud any bank or financial institution or any other institution or
organisation for obtaining monetary benefits in any form."
7. The applicant is also facing charge under Sections 316 (2), 318 (4),
61(2), 111(3) and 111(4) of the BNS. Sections 111(2) and 111(3) of the
BNS read as under:-
"(2) Whoever commits organised crime shall,-
(a) if such offence has resulted in the death of any person, be punished with
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death or imprisonment for life, and shall also be liable to fine which shall not be
less than ten lakh rupees;
(b)in any other case, be punished with imprisonment for a term which shall not
be less than five years but which may extend to imprisonment for life, and shall
also be liable to fine which shall not be less than five lakh rupees.
3)Whoever abets, attempts, conspires or knowingly facilitates the commission
of an organised crime, or otherwise engages in any act preparatory to an
organised crime, shall be punished with imprisonment for a term which shall
not be less than five years but which may extend to imprisonment for life, and
shall also be liable to fine which shall not be less than five lakh rupees."
8. Keeping in mind the aforesaid fact as well as the judgment relied
upon by learned counsel for the applicant in the decision of this Court in
case of Sushila Aggarwal & Ors. (supra) would not helpful to the case of
the applicant. However, it is to be noted that while deciding the bail
application, the Court should not blindly rely upon the precedent as held
by the Apex Court in the case of Kalyan Chandra Sarkar Vs. Rajesh
Ranjan Alias Pappu Yadav, reported in (2004 (7) SCC 528, as each case
should be decided on its own merits and the Court has to consider the
facts of each case and in the instant case, prima facie involvement of the
accused is found.
9. Upon reviewing the facts of the present case and the material
placed on record, it is clear that the applicant is named in the FIR, and the
involvement of a total 12 accused persons has been identified in the
offence. Four of the accused are yet to be arrested and remain at large.
The applicant is the mastermind and kingpin of the offence. Along with
the other accused, he has hatched a criminal conspiracy and is part of a
larger syndicate. It further appears that the complainant sold his house
property in Bengaluru and received Rs. 1.75 crore in cash, intending to
convert it into legitimate funds. The applicant, by gaining the
complainant's trust, obtained this money, promising to transfer it
through RTGS to the complainant's account with HDFC Bank. However,
the applicant neither transferred the money nor returned it to the
complainant. As part of the transaction, the applicant provided a half-
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note of Rs. 10 as a token. The entire transaction was carried out by the
applicant and one Raul Khatri. FIR was subsequently filed in this regard.
10. It further appears that, the complainant and his friend traveled to
Vadodara, where they met one Ghanshyam Patel. The complainant then
met the applicant at his office, located at Office No. 220, 2nd Floor, Park
Paradise Complex, Vadsar, Vadodara, along with co-accused Rul Khatri,
Jignesh Soni, Prakash Baishya, and another accused, Shabbir Sardar
Bhatti, who was present in the basement. During this meeting, the
complainant handed over Rs. 1.75 crore in cash. To gain the
complainant's trust, the accused demanded the complainant's account
number and assured him that the money would be transferred within 20
minutes. However, when the complainant did not receive the transfer, he
inquired, and the accused told that the payment would arrive soon.
Ultimately, the complainant did not receive his money in his account. The
applicant further explained that due to the large amount of cash, it was
unsafe to store it in the office and suggested keeping it in a godown.
Accused Rul Khatri tore a half-note of Rs. 10 and gave it to the
complainant, stating that if the RTGS transfer did not come, the
complainant could return the half-note for a refund of the cash. The bags
containing the money were put in the car of Bhavnaben, the office
owner, and all the accused, along with the applicant, left in the car with
the money. Thus, the accused, in collusion with each other, lured the
complainant into this scheme and fraudulently took Rs. 1.75 crore. The
applicant, being a member of this syndicate, played a significant role in
deceiving the complainant. Furthermore, the applicant's presence is
substantiated by mobile location data and CDR evidence. Eight accused,
including the applicant, are still at large. If anticipatory bail is granted to
the applicant, there is a possibility that he could tamper with evidence or
influence witnesses. The applicant has been in constant contact with the
co-accused, and his custodial interrogation is required for the recovery of
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the complainant's money.
11. Considering the aforesaid fact and keeping in the mind and after
going through the investigation papers, prima facie, it appears that the
present applicant is actively involved in the offense. He has obtained
money from the complainant and then did not transfer in the account of
the complainant. Therefore, if bail is granted, then it may adversely
affect the case of prosecution as investigation is at prelimianry stage.
This Court has considered the interest of the prosecution and the
applicant's personal liberty, it cannot overside the larger public interest
and accused facing charge of organized crime syndicate. Prior to give
weightage to personal liberty, the Court has to strike balance between
personal liberty and a larger interest of society.
12. So far the submission of parity is concerned, even, the applicant
cannot claim parity on that basis and while granting the bail must focus on
the role of accused and said protection is granted in the anticipatory bail.
Without proper investigation, it is impossible to unearth the large scale
scam, the syndicate and to find out the modus operandi, if bail is granted at
this primary stage, which would amount to premium to unethical and
immoral personality. The public confidence in the system undermines,
keeping in mind sensitivity of matter and if in cavalier fashion benefit of
parity extended or bail gratned, then not only wrong message will travel in
the public but hamper the investigation and tampered with an evidence
which is nothign but amounts to premium to wrongdoers.
13. In aforesaid backdrop, custodial interrogation and detail inquiry is
necessary. When serious offences are disclosed and involvement of an
accused prima facie established then, the Court would be loath to lean in
favour of grant of pre-arrest bail in absence of any other overriding
considerations. The alleged offence is in nature of white collar and
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economic offence, this Court is conscious with the safeguards provided
under Section 482 of BNSS and concept of the personal liberty. Arrest is
part of the process of investigation and intended to secure several
purposes. In which the accused may provide information, during the the
discovery of material facts and to relevant information.
14. At the time of deciding the bail application, the Court should
refrain from appreciating the evidence. However, considering the
submissions made by the learned advocates for the respective parties
and the fact and specific stand taken by the applicant to extend the
benefit of parity as the co-accused are released on bail. Hence, this Court
has considered the material collect during the course of investigation
with a view to examine the applicability of parity. The reference is
required to be made in a case of Ramesh Bhavan Rathod vs. Vishanbhai
Hirabhai Makwana, reported in AIR 2021 SC 221, wherein, the Hon'ble
Apex Court held that when deciding a bail application and extending the
benefit of parity, the Court has to examine the exact role attributed to
the accused. If the accused played a similar role, then the Court should
extend the benefit of parity. Merely some words or any observation
made in the order are not enough, such approach is erroneous and
inappropriate for considering the benefit of parity. As co-accused are
released on regular bail, the applicant is not entitled to claim parity in
anticipatory bail.
15. Further, in the case of Pratibha Manchanda vs The State of
Haryana, reported in AIR 2023 SC 3307, wherein the Hon'ble Apex Court
has held in Para 19 as under:
19. The relief of Anticipatory Bail is aimed at safeguarding individual rights.
While it serves as a crucial tool to prevent the misuse of the power of
arrest and protects innocent individuals from harassment, it also presents
challenges in maintaining a delicate balance between individual rights and
the interests of justice.
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The tight rope we must walk lies in striking a balance between
safeguarding individual rights and protecting public interest. While the
right to liberty and presumption of innocence are vital, the court must also
consider the gravity of the offence, the impact on society, and the need for
a fair and free investigation. The court's discretion in weighing these
interests in the facts and circumstances of each individual case becomes
crucial to ensure a just outcome."
16. In the case of Central Bureau of Investigation Vs. Vikas Mishra
@ Vikash Mishra, reported in (2023)6 SCC 49, the right of custodial
interrogation is very important right of the investigating agency to
unearth the truth and which the accused has purposely and successfully
tried to frustrate. Hence, police custody for interrogation is necessary.
Here in the case on hand, complainant has lost his hard earned income
and to recover the said amount, custodial interrogation is necessary. It is
also important to refer the decision of Manik Madhukar Sarve vs Vithal
Damuji Meher, reported in 2024 INSC 636. In the case of economic
offence, many time amount is diverted or siphoned off in different
accounts and for that custodial interrogation is requierd which is an
important tool to trace out the amount. It is apt to refer the decision of
the Hon'ble Supreme Court of India delivered in case of State of
Gujarat Vs. Mohanlal Jitmalji Porwal & Anr., reported in 1987 (2)
SCC 634, wherein the Hon'ble Apex Court in para 5 held as under:-
"5. The entire community is aggrieved if the economic offenders who ruin the
economy of the State are not brought to book. A murder may be committed in
the heat of moment upon passions being aroused. An economic offence is
committed with cool calculation and deliberate design with an eye on
personal profit regardless of the consequence to the Community. A disregard
for the interest of the community can be manifested only at the cost of
forfeiting the trust and faith of the Community in the system to administer
justice in an even handed manner without fear of criticism from the quarters
which view white colour crimes with a permissive eye unmindful of the
damage done to the National Economy and National Interest."
17. Further, keeping in mind Law laid down by the Hon'ble Supreme
Court in the case of Siddharam Satlingappa Mhetre V/s State of
Maharashtra and Others reported in (2011) 1 SCC 694. Herein, I have
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gone through the material available against the accused very carefully
and it appears that herein, no complaint has been made with view to
humiliating or tarnish the image of the present applicant. Even in Jai
Prakash Singh V/s State of Bihar and another, reported in (2012) 4
SCC 379, Honourable Supreme Court pleased to hold:
"Parameters for grant of anticipatory bail in a serious offenceare
required to be satisfied and further while granting such relief,
the court must record the reasons therefore. Anticipatory bail
can be granted only in exceptional circumstances where the
court is prima facie of the view that the applicant has falsely
been enroped in the crime and would not misuse his liberty."
18. The object of anticipatory bail is that person should not be
harassed or humiliated in order to satisfy the grudge or personal
vendetta of the complainant. In present case, no any such sort of
allegation or bias is found out it is needless to say that order under
Section 482 of the BNSS is not a passport to the commission of trial nor a
shield against any serious accusation, which adversely affects the society.
Here in the instant case, the complainant has lost his hard earned money.
19. This Court is of the considered view that if the present accused is
equipped with protective order, it would obviously adversely affect the
case of the prosecution and the qualitative investigation as applicant is
having trained legal mind and he will tamper with evidence and
witnesses of prosecution and here two accused are still out of reach, who
are directly connected with the present accused and other co-accused.
20. In the above facts and circumstances and considering the
observations on the legal aspect of the matter, this Court has absolutely
no doubt that if applicant is equipped with such an order before he is
interrogated by the Police, it would greatly harm the investigation and
would impede the prospects of unearthing all the ramifications involved
in the conspiracy. Having considered nature and seriousness of the
charge, prima facie involvement of accused and possibility of tempering
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with evidences, it does not appear to be just and proper to exercise the
discretion in favour of the applicant and accordingly, the application for
anticipatory bail is dismissed. However, it is needless to say that, the
observations made in this order are tentative in nature.
(HASMUKH D. SUTHAR,J)
SUCHIT
