Gujarat High Court
Arbaz Yunusbhai Vahora vs State Of Gujarat on 8 January, 2025
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R/CR.MA/18216/2024 ORDER DATED: 08/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 18216
of 2024
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ARBAZ YUNUSBHAI VAHORA
Versus
STATE OF GUJARAT
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Appearance:
MR. BHAVIK P SHAH(6391) for the Applicant(s) No. 1
MS VIRAL A DETROJA(12122) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 08/01/2025
ORAL ORDER
1. RULE. Learned advocates waive service of notice for the
respective respondents.
2. By way of the present application under Section 482 of
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the
applicant accused has prayed to release him on anticipatory bail
in the event of his arrest in connection with the FIR being C.R.
C.R.No.11198068230243 of 2023 registered with Bharatnagar
Police Station, Dist. Bhavnagar punishable under Sections 406,
420, 120(b) of the Indian Penal Code and also under Sections
66(c), 66(d) of the IT Act.
3. The brief facts of the case are that the complainant, who is
a teacher, received a message on her mobile from an unknown
number regarding a part-time job opportunity. Interested in the
offer, she responded positively. The sender provided a link and
instructed her to complete tasks, promising payment for each
completed task. Subsequently, she was given various tasks and
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was encouraged to deposit money into different accounts to earn
greater rewards. However, no payment was made in return,
leading to the present complaint.
4. Learned advocate for the applicants submits that the
applicant herein have nothing to do with the offence and has
been falsely implicated in the present case. It is submitted that,
upon perusal of the contents of the FIR, it is clear that the entire
story has been concocted with the intention of falsely implicating
the applicants herein. The applicant's name is not mentioned in
the primary complaint, which was filed late on 08.04.2023.
While on the basis of statement of co-accused Mayurbhai the
present applicant implicated in the offence. All transactions were
conducted in name of Mayurbhai and no transactions in the
name of the applicant. The co-accused Mayurbhai has already
been granted regular bail by the Coordinate Bench of this Court
on 03.01.2024 in Criminal Misc. Application No. 23294 of 2023.
Therefore, the applicant has sought bail on parity grounds.
Another co-accused, Vishalbhai, remains in judicial custody. The
present case involves a maximum penalty of seven years and the
offence is triable by the Magistrate. The charge sheet has already
been filed qua other co-accused, and the investigation against
the present applicant is ongoing. There is no risk of absconding.
Learned advocate for the applicant submits that the nature of
allegations are such 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.
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5. The learned APP appearing for the respondent-State has
opposed the application and submitted that the applicant is
directly involved in the offense. It is submitted that in the FIR,
the complainant stated that on 04.03.2023, while at their
residence in, the complainant received a message on his mobile
number about part-time job opportunities. He was asked to
download the Telegram app, where he were tricked into
depositing a total of ₹4,90,000. The accused breached trust and
committed fraud using accounts linked to Disney Star Agency
and Telegram IDs like @Riya1471. It is alleged that the accused
worked with co-accused to commit financial fraud. Co-accused
Mayurbhi used his ICICI Bank account (No. 1830055004) to
transfer ₹20,000 for personal benefit and gave it to co-accused
Vishal Parmar, who then gave it to the present applicant, Arbaz
alias Gabu Yunusbhai Vora. On 16.03.2023, a total of
₹3,83,64,685 was deposited into the applicant's account, and
₹3,83,58,437 was withdrawn the same day, which included
₹1,50,000 belonging to the complainant. In view of the aforesaid
fact, it has become evident that the present applicant played an
active role in the offense. Therefore, the present application may
be dismissed.
6. The Court has to consider the involvement of the accused
in the alleged offence and as to whether prima facie it appears
that accused has committed an offence, is required to be
considered. So far as the anticipatory bail is concerned, the
jurisdiction to grant bail has to be exercised on the basis of the
well settled principles having regard to the facts and
circumstances of each case and the following factors are to be
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taken into consideration while considering an application for
bail:- (i) the nature of accusation and the severity of the
punishment and the nature of the materials relied upon by the
prosecution; (ii) reasonable apprehension of tampering with the
witnesses and threat to the complainant of the witnesses; (iii)
reasonable possibility of securing the presence of the accused at
the time of trial or the likelihood of his abscondence; (iv)
character behaviour and standing of the accused and the
circumstances which are peculiar to the accused; (v) larger
interest of the public or the State and similar other
considerations are required to be considered.
7. Having heard the learned advocates for the respective
parties and having gone through the evidence produced on
record, it appears that On 03.04.2023, the complainant received
a message on her mobile about a part-time job and was induced
to deposit ₹4,90,000 via the Telegram app. The number, linked
to Disney Star Agency and Telegram user @Riya1471, was used
for the crime. As per the complainant, she deposited ₹1,00,000
into Mayurkumar Thakkar's Bank of Baroda account (No.
91690100011418) and ₹50,000 from the mother's account (No.
37716853012), totaling ₹1,50,000, which went to Mayurkumar
Thakkar's ICICI Bank account (No. 183005500466).
Investigation revealed Mayurkumar Thakkar, residing at
Radhaswami Nivas, Anand, was involved. He confessed during
questioning at Bharatnagar Police Station and was arrested on
15.07.2023 Accused-Mayurbahi admitted receiving ₹20,000 for
personal gain, which he passed to Vishal Parmar and
Ramprasad Gautam alias Harry. Vishal Parmar handed the
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account to Arbaz alias Gabu Yunusbhai Vora. On 16.03.2023,
₹3,83,64,685 was deposited into the account, and ₹3,83,58,437
was withdrawn the same day.
8. Considering the aforesaid fact that a huge amount of
₹3,83,64,685 was deposited into the account and on the same
day ₹3,83,58,437 was withdrawn from the account of accused
No.1. Therefore, if bail is granted, then it may adversely affect
the case of prosecution as investigation is at preliminary stage.
This Court has also considered the interest of the prosecution
and the applicant's personal liberty, it cannot overside the larger
public interest and accused facing charge of criminal breach of
trust. Prior to give weightage to personal liberty, the Court has to
strike balance between personal liberty and a larger interest of
society.
9. In so far the statement of co-accused is concerned,it
provides clues to the investigating agency as to how to
investigate the case and thereafter the investigating officer has to
collect evidence against the person who has been named as the
accused. In the light of the above provisions, there is no bar on
considering the statement of co-accused for investigation
purposes. At this stage, it is relevant to note that this Court has
observed in the case of Mohmed Salim abdul Rasid Shaikh vs.
State of Gujarat, reported in 2001(2) GLR 1580, in para 12, as
under:
"...It is pertinent to note that the prosecution case rests
mainly on circumstantial evidence and police has received a
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clue against the present applicant from the statement of
coaccused, already arrested. Irrespective of the fact that
statement of co-accused to police is not admissible in
evidence before the Court, but police can certainly consider
that statement as a clue while interrogating him further or
other persons arrested or interrogated during the course of
investigation..."
10. Further, in the case of Mohammed Fasrin v. State Rep. By
the Intelligence Officer, rendered in Criminal Misc. Application
No.296 of 2014, the Hon'ble Supreme Court observed as under:
".......The confessions of a co-accused gives a clue to the investigating
authorities as to how to investigate the matter and against whom to
investigate the matter. Thereafter, it is for the investigating officers to
collect evidence against the said person who has been named by the co-
accused....."
11. Hence, the argument put forth by the learned advocate for
the applicant, which suggests that the evidence against the
present applicant consists solely of statements made by co-
accused individuals, it is essential to emphasize that in cases
where the accused is charged with conspiracy, the statements of
co-accused are indeed relevant. Furthermore, these statements
have the value to offer leads clue for further investigation. Hence,
argument canvassed by the learned advocate is not sustainable.
12. The accused is suspected of aiding in the crime, and a
detailed interrogation of their bank account transactions is
needed. As the applicant is from another district, there is
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concern they may not attend trial proceedings. The applicant is
accused of a large-scale fraud, and custodial interrogation is
necessary. The government has opposed granting anticipatory
bail, stating it could delay the investigation, tamper with
evidence, or influence witnesses. Releasing the applicant would
prevent the investigating agency from properly questioning them
while in custody.
13. In aforesaid backdrop, custodial interrogation 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 socioeconomic offence, this Court is
conscious with the safeguards provided under Section 438 of the
CrPC and concept of the personal liberty. But herein, I am of the
considered of view that, the present offence is committed very
smartly which is not just an offence against any individual
rather the largest societal interest and public welfare is involved
at and in such circumstances, the delicate balance is required to
be maintained between two rights one against the personal
liberty and second is societal interest. Arrest is part of the
process of investigation and intended to secure several purposes.
In which the accused may provide information, during the the
discovery of material facts and to relevant information.
14. In such circumstances, when investigation is in
preliminary stage if, anticipatory bail is granted may hamper the
investigation and to collect the material in the more information,
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and find out the involvements of another person custodial
interrogation is also necessary, therefore, keeping in mind the
law laid down by the Honourable Supreme Court in the case of
(i) State Rep. by the CBI V/s Anil Sharma reported in 1997 (7)
SCC 187, (ii) Adri Dharan Das V/s State of W.B. reported in
2005 (4) SCC 303 and (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
the 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 denial of
the rights conferred upon the appellant/applicant under
Article 21 of the Constitution of India.
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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 prearrest 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"
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, italso 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
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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. Further, keeping in mind Law laid down by the Hon'ble
Supreme Court in the case of Siddharam Satlingappa Mhetre V/
s State of Maharashtra and Others reported in (2011) 1 SCC
694. Herein, I have gone through the material available against
the accused very carefully and it appears that herein, no
complaint has been made with view to humiliating or tarnish the
image of the present applicant. 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. Anticipatorybail 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."
17. 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 of
pre arrest bail is not a passport to the commission of trial nor a
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shield against any serious accusation, which adversely affects
the society as the alleged involvement of amount ₹3,83,64,685/-3,83,64,685/-
money trail of an amount is yet to be traced out and amount has
been siphoned in the various accounts and so far as it is an
economic offence and there is involvement of money, applicant
required to be visited class apart. In this regard the Court deems
it fit to refer to the judgment of the Hon'ble Apex Court in the
case of State of Gujrat vs. Mohanlal Jitamalji Porwal, reported in
(1987) 2 SCC 364, the Court in para 5 has observed that:
"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 with- out 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."
18. 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.
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19. 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.
20. Having considered nature and seriousness of the charge,
prima facie involvement of accused and possibility of tempering
with evidences, it does not appear to be just and proper to
exercise the discretion in favour of the applicant and
accordingly, the application for anticipatory bail is dismissed.
Rule discharged.
(HASMUKH D. SUTHAR,J)
ALI
