Gujarat High Court
Zakir @ Rajubhai Yusuf Shaikh @ Sameer ... vs State Of Gujarat on 29 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 22679
of 2024
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ZAKIR @ RAJUBHAI YUSUF SHAIKH @ SAMEER KARIM SAIT
Versus
STATE OF GUJARAT
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Appearance:
MR HRIDAY Buch appearing for MR C J GOGDA(7488) for the Applicant(s)
No. 1
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 29/01/2025
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.11191045221193 of 2022 registered with Sola High
Court, Ahmedabad for the offences punishable under Sections
419, 420, 465, 467, 468, 470, 471 and 120B of the Indian Penal
Code and Section 12 of the Passport Act.
3. The Prosecution's case is that the present applicant acted
as an agent for the main accused and other co-accused in
furtherance of their criminal conspiracy. There exists a prima
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facie nexus between the applicant and the main conspirator,
Bharatbhai @ Bobi Rambhai Patel, who has a history of
involvement in similar offences. As per the affidavit of the
Investigating Officer (IO), the applicant played a direct and active
role in the offence. These allegations are prima facie corroborated
by the statement recorded under Section 164 of the CrPC from
key witnesses. During the investigation, 79 forged passports and
other valuable documents were recovered in connection with the
offence, and forensic examination (FSL reports) confirmed that
they were forged. Statements under Section 164 of the CrPC
have been recorded from nine witnesses, all of whom have
supported the prosecution's case against the applicant and other
co-conspirators. Several accused persons have already been
arrested, while 11 accused, including the present applicant,
remain absconding out of a total of 20 accused. To date, one
main charge sheet and three supplementary charge sheets have
been filed against eight accused, including the main conspirator.
4. Learned advocate for the applicant has submitted that the
present applicant has nothing to do with the alleged offence and
has been falsely implicated based on the statement of a co-
accused. The complaint was registered by the DCB (Crime) Police
Station (State Monitoring Cell), Gujarat against four accused
persons, alleging that they conspired together for financial gain
by assisting people who wished to travel to the USA. The accused
were involved in preparing forged passports, visas, and other
documents, charging passengers between ₹60 to ₹75 lakh and60 to ₹60 to ₹75 lakh and75 lakh and
₹60 to ₹75 lakh and1.25 crore to ₹60 to ₹75 lakh and1.75 crore per person. By facilitating fake visas
and passports, they attempted to deceive aspirants seeking to
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migrate to the USA. Based on these allegations, a complaint was
filed, and one of the accused was arrested.
4.1 It is further submitted that the present applicant has been
implicated solely on the basis of statements given by Accused
No.1 - Bharatbhai @ Bobby and another accused who worked
with him. There are no specific allegations, no direct nexus with
any of the accused or passengers, and no disclosure of the
applicant's name by any party involved. The applicant's name is
mentioned in Column No.2 as an absconding Accused No.8.
Upon considering the investigation papers, it appears that a
charge sheet has been filed against the co-accused. It is also
revealed that the present applicant was working in Mumbai and
Delhi as an agent, assisting passengers in migrating to the USA.
He provided them with valid European visas and facilitated their
travel route from Ahmedabad to Delhi, then to Europe, Mexico,
and ultimately to the USA. Other than this, no direct role has
been attributed to the applicant.
4.2 It is further submitted that the applicant is a law-abiding
citizen who is ready and willing to join the investigation. There
are no allegations of forgery regarding passports or visas. All
documents, including visas and passports provided by the
applicant, are genuine. The applicant is engaged in the business
of film production, and there are no accusations of forgery
against him. His implication in the case is solely based on the
statement of Accused No.1 - Bharatbhai @ Bobby. Furthermore,
the police never summoned him, and upon learning about the
issuance of warrants under Section 70 and Section 82 of the
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Cr.P.C., he initiated appropriate proceedings before the
Magistrate, which are currently pending. The trial court rejected
his bail application on the ground that he has been declared an
absconder. However, there is no legal bar to entertaining such
an application in the case of an absconding accused. In this
regard, reliance is placed on the judgment passed by the Hon'ble
Apex Court in the case of Asha Dubey v. State of Madhya
Pradesh, reported in 2024 LiveLaw (SC) 889, wherein the Court
observed that being declared a proclaimed offender does not bar
a court from granting anticipatory bail. Therefore, the present
application may be allowed, as the other co-accused have been
released either on anticipatory bail or regular bail, and nothing
is required to be recovered or discovered from the present
applicant.
5. Per contra, the learned APP has vehemently opposed the
bail application, considering the nature and gravity of the
offence, the severity of the punishment, and the existence of an
international conspiracy/racket involving cheating amounting to
crores of rupees through the illegal immigration of a large
number of people to the USA and other countries. The accused
allegedly created forged and fabricated passports and visas,
concealed true identities and information, and used such forged
documents as genuine before passport authorities. By doing so,
they not only committed cheating and forgery against various
governments, including India, but also deceived victim citizens.
The applicant is alleged to be a key member of this criminal
conspiracy.There is a strong prima facie case against him, and
the prosecution fears that if he is released on bail, he may
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tamper with evidence and witnesses. There is a serious
apprehension that he may flee abroad using a forged
passport/visa to evade justice.
5.1 Learned APP has further submitted that a warrant under
Section 70 of the Cr.P.C. has been issued against him,
proceedings under Section 82 of the Cr.P.C. have also been
initiated, and a red corner lookout notice has been issued
against the present applicant. Out of 79 passports, 7 have been
found to be forged, and the applicant has used various names--
Zakir @ Rajubhai @ Babu @ J4, for the purpose of duping
people. The statements of the co-accused and witnesses under
Section 164 of the Cr.P.C. have been recorded, revealing that
during the election period, he received a huge amount of cash.
He has connections with embassy officers and, with their help,
managed to change names in documents. As a result, the
passport authority has revoked two passports. The applicant has
been an absconder for the last two years. Despite a notice being
served to his wife, he did not cooperate with the investigation.
The applicant has three wives. The learned APP further
submitted that custodial interrogation of the applicant is
essential to uncover the depth of the conspiracy, and therefore,
he is not entitled to anticipatory bail. If released on bail, it may
hinder the investigation. On these grounds, the learned APP has
vehemently opposed the bail application. Therefore, the present
application may be dismissed in view of the judgment passed by
the Hon'ble Apex Court in the case of Srikant Upadhyay vs The
State Of Bihar, reporrted in 2024 SCC OnLine SC 282, wherein
the Court has observed that no anticipatory bail to accused
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against whom non-bailable warrant & proclamation under
section 82 Cr.P.C. are pending.
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
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 upon perusing the evidence on record, it appears
that a complaint was filed at the instance of DCB Police Station
on 28.12.2022. The complaint alleges that the applicant, in
connivance with other co-accused, hatched a conspiracy to dupe
innocent people. From 2015 to 2022, in order to gain financial
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benefit, the accused created forged documents, passports, and
visas of other countries with the assistance of embassy officials,
under the pretext of sending passengers to the USA while
charging them exorbitant amounts. As a result, an offence was
registered. During the investigation, it was found that the
present applicant is the main conspirator, having strong
influence within the embassy. He allegedly charged Rs. 60 to 75
lakh per passenger and, in the case of spouses and children,
between Rs. 1 crore to 1.25 crore or Rs. 1.25 crore to 1.75 crore.
The applicant is involved in the creation of illegal passports. A
total of 79 passports, Aadhaar cards, PAN cards, and other
documents have been recovered. Out of these, seven passports
were found to be forged and the same fact was confirmed by the
passport authority. In this regard, the statements of witnesses
have also been recorded.
8. It appears that during the investigation, the statements of
co-accused and witnesses under Section 164 of the Cr.P.C. have
been recorded, clearly establishing the involvement of the
present applicant. The applicant has been an absconder since
2022 and is a partner of accused No.1, Bharatbhai @ Bobby,
who is involved in human trafficking. The present applicant has
four offences registered against him and is popularly known as
"J4." Sufficient evidence has been recovered from witnesses to
support his involvement. The accused is known by multiple
names--Zakir @ Rajubhai @ Babu @ Sameer @ J4. The applicant
not only created forged documents but also altered names in the
documents and fabricated passports for passengers.
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Additionally, the applicant himself possessed two passports,
which were subsequently revoked by the passport authority. The
concerned authority also informed the immigration department
about the revocation of these passports.
9. Though Notice served by the then Investigating Officer in
the year 2022 to the applicant's wife, the applicant reamined out
of reach. Hence, proceedings under Section 70 of the Cr.P.C. and
82 of the Cr.P.C. came to be initiated against the applicant and
also a red corner lookout notice came to be issued on
23.10.2024 and therefore, in view of the law laid down by the
Hon'ble Apex Court in case of Srikant Upadhyay (supra); State
of Haryana vs. Dharamraj reported in 2023 INSC 784; Lavesh
vs. (NCT of Delhi) reported in (2012) 8 SCC 730; Abhishek vs.
State of Maharastra reported in 2022 (8) SCC 282 and Prem
Shankar Prasad vs. State of Bihar reported in 2021 SCC On-
Line SC 955, no case is made out to grant the anticipatory
bail.
10. In this regard the law laid down by the Hon'ble Apex
Court in the case of Central Bureau of Investigation v.
Santosh Karnani, reported in 2023 SCC OnLine SC 427 and
Sumitha Pradeep vs Arun Kumar C.K, reported in 2022 SCC
Online (SC) 1529, wherein the Court held that Custodial
interrogation can be one of the relevant aspects to be
considered along with other grounds while deciding an
application seeking anticipatory bail. Therefore, I am of the
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considered view that this is not a fit case to exercise the
jurisdiction as it is nothing but to exercise to jurisdiction
under Section 70(2) of the CrPC in favour of the applicant.
11. In view of the above decision and in view of the facts and
circumstances of this case, custodial interrogation of not only
the applicant, but also all other suspect/s is therefore
imperative to unearth the truth. Hence, this is a not a fit case
to exercise the jurisdiction in favour of the applicant.
12. The argument made by the learned advocate for the
applicant, that there is no legal bar to entertaining such an
application in the case of an absconding accused, relies on the
judgment passed by the Hon'ble Apex Court in Asha Dubey
(supra). In that case, the Court observed that being declared a
proclaimed offender does not bar a court from granting
anticipatory bail. However, in the present case, the Court has
examined the merits and found that, despite the issuance of
notices under Sections 70 and 82 of the Cr.P.C., as well as a
lookout notice, the applicant did not cooperate with the
investigation. This case is different, as custodial interrogation is
required, and the applicant has remained an absconder for the
past two years and red corner notice is also issued. Considering
the application would amount to interfering with the order
passed by the learned trial Court under Section 70 of the Cr.P.C.
Hence, the authority relied upon by the learned advocate for the
applicant in the case of Asha Dubey (supra) would not avail any
assistance to the applicant.
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13. Further, the applicant has similar type of four past
antecedents. The FSL report has concluded that some of the
passports seized by the investigating agency bear identical
numbers, and the passports recovered from witnesses were
found to be forged. The visas were also found to be duplicates,
related to Istanbul (Turkey), and the embassy has confirmed this
fact. The applicant, by creating forged documents, passports,
and visas, facilitated the illegal migration of individuals abroad,
deceived them, and gained financial benefits. The applicant
received money through private channels (Angadia), and
significant cash transactions were carried out between the
accused persons. Furthermore, certain chits were recovered,
indicating the applicant's involvement in the offence. If the
applicant is released on bail, the applicant has the ability to
influence the investigation and derail it using his financial power
and clout.
14. 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:
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"...It is pertinent to note that the prosecution case rests
mainly on circumstantial evidence and police has received a
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..."
Herein also other sufficient materials collected during
the investigation which suggest the role and prima faice,
involvement of applicant in the offence.
15. 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 is not acceptable and 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.
16. In aforesaid backdrop, custodial interrogation of applicant
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
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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.
19. In such circumstances, when investigation is in a
progressive stage if, anticipatory bail is granted may hamper the
investigation and to collect the material in the more information,
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
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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.
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".
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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"
20. 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
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."
21. 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
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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."
22. 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
some accused are still out of reach, who are directly connected
with the present accused and other co-accused.
23. 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.
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24. Having considered nature and seriousness of the charge,
prima facie involvement of accused and possibility of tempering
with evidences and the fact that the appliant has procured
duplicate passports by changing his name and against him
proceedings under Sections 70 and 82 of the Cr.P.C. came to be
initiated, thereafter a red corner notice is also issued on
23.10.2024, 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
