Mohammed Ghouse Khan @ Mohammed Akbar ... vs State Of Gujarat
2025 Latest Caselaw 766 Guj

Gujarat High Court

Mohammed Ghouse Khan @ Mohammed Akbar ... vs State Of Gujarat on 10 July, 2025

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                            R/CR.MA/11015/2025                                          ORDER DATED: 10/07/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 11015
                                                  of 2025

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                                MOHAMMED GHOUSE KHAN @ MOHAMMED AKBAR KHAN
                                                   Versus
                                             STATE OF GUJARAT
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                       Appearance:
                       MR SULAIMAN I LABBAI(11342) for the Applicant(s) No. 1
                       MS KIRAN R PATEL(13774) for the Applicant(s) No. 1
                       MR ROHITKUMAR R SHARMA(12025) for the Respondent(s) No. 1
                       MR HARDIK SONI APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                                             Date : 10/07/2025

                                                                 ORAL ORDER

1. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the applicant has prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No. 11210055250261 of 2025 registered with Salabatpura Police Station, Dist: Surat, for the alleged offences as mentioned in the FIR.

2. Learned advocate Mr. Sulaiman appears for the applicant through virtual mode and submits that as per the case of the prosecution, the so-called incident occurred between the period of 29.02.2024 to 30.10.2024 whereas FIR is registered on 28.02.2025. FIR is registered against total two persons. There is gross delay of 121 days in registering the FIR, and complainant has not given any

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explanation about the delayed registration of FIR. He further submits that, in fact, there were business transactions took place between the complainant and the present applicant, and after receiving goods from the complainant certain payment had been made by the present applicant, and criminal color is given to the commercial transaction. He submits that considering the above-stated factual aspect bail application of the applicant may be entertained by imposing suitable terms and conditions.

3. Learned APP Mr. Soni who appears on behalf of the respondent - State has objected the present application and submitted that applicant herein is a hardcore criminal and numbers of offenses have been registered against him. He submits that under the guise of commercial transactions first in point of time, he used to enter into the transactions with vendors and after receiving goods, he used to pay payments upto certain periods, and then after, after receiving huge volume of consignment from the vendors, he did not repay the outstanding bills. He submits that total 14 complaints under the provisions of Section 138 of N.I. Act have been instituted against the present applicant, and all those matters are still pending at the stage of serving summons to the accused person, and as per the report of the investigating officer, he has not submitted correct address in those matters, and therefore, despite the fact that time and again summons have been issued by the court, it could not have been served to the applicant.

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Therefore, conduct of the applicant clearly goes onto show that he is a very criminal minded person. He further submits that applicant herein has received goods of Rs.2,52,00,000/- from the complainant and still there is outstanding bill of Rs.1,32,00,000/-. Not only that in the city of Surat another application is pending wherein outstanding due is Rs.2,22,00,000/-. Due to non- availability of the applicant, LOC (lookout circular) had also been issued by the competent court. Considering the above-stated factual aspects, it is prima-facie found out that involvement of the applicant is clearly there, and therefore, anticipatory bail may not be entertained in favour of the applicant.

4. I have heard and considered the arguments canvassed by the learned advocates for the parties and perused the material available on record. It is found out from the record that the so-called incident occurred during the period between 29.02.2024 to 30.10.2024, and FIR is registered on 28.02.2025. It is the specific case of the complainant that initially applicant herein had come into contact with the complainant and had given assurance to the complainant that if they will enter into the business transactions with him, in that event, huge profit would be earned by the complainant, and due to which initially they had entered into the relationship, and first two or three transactions have been cleared, and then after, after winning the confidence of the complainant, applicant herein had demanded huge chunk of valuable goods from the complainant, which was received and

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taken by the applicant, but he did not pay, and therefore, complainant has made number of efforts to contact him, but could not get success in his attempts. Therefore, as a last resort, the present FIR has been filed. It is also brought to the notice of this court that the present applicant is a habitual offender, and number of other persons have made application in the form of complaint against the present applicant and that there are all possible chances that soon those all FIRs will be registered. The applicant herein used to give assurance to the complainant and initially two or three transactions regularly being carried out between the parties, and thereafter, after receiving huge volume of the goods from the parties, applicant herein had gone into incommunicado, and used to administer the threat of dire consequences. It is also found out that, in fact, he had issued cheques to number of lenders who had initiated proceedings against the applicant under the provision of Section-138 of the N.I. Act. As good as 14 under N.I. Act have been pending against the applicant wherein summons issued by the court could not have been served upon the applicant solely on the count that address mentioned in the application is not correct, which clearly goes onto show that a systematic modus operandi had been adopted by the present applicant to win the confidence of the persons by giving assurance to enter into the business transactions. Initially, two or three transactions are regularly being made, and then after, disappeared and/or shifted his place of business. The

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above-stated factual aspects clearly goes onto show that from the very beginning, at the time of entering into the business transactions, it was fixed in the mind of the applicant that he has to carry out two or three transactions in proper form, and then after, after receiving a huge volume of goods from the complainant, payment of the said goods would not be given to them. Therefore, on strength of the above-stated factual aspects, this court is of the opinion that this is a fit case wherein discretionary power of anticipatory bail in favour of the applicant cannot be exercised.

5. At this stage, it is required to be noted that as this application has been preferred under the provisions of Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of anticipatory bail, I would like to refer the decision of the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors.,, reported in (2011) 1 SCC 694, more particularly Paragraph Nos.14 & 112, which read as under :-

"14. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the

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age-old principle that an individual is presumed to be innocent till he is found guilty by the court.

112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; the antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; The possibility of the applicant to flee from justice; The possibility of the accused's likelihood to repeat similar or the other offences. Whereas the accusation have been made only with the object to injuring or humiliating the applicant by arresting him or her. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case."

6. The Hon'ble Supreme Court in the case of Sumitha Pradeep Vs. Arun Kumar C.K. & Anr., reported in 2022 SCC OnLine SC 1529 held that merely because custodial interrogation was not required by itself could not be a ground to grant anticipatory bail. The first and

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the foremost thing the Court hearing the anticipatory bail application is to consider is the prima facie case against the accused. The relevant extract of the judgment is reproduced hereinbelow:-

"It may be true, as pointed out by learned counsel appearing for Respondent No.1, that charge-sheet has already been filed. It will be unfair to presume on our part that the Investigating Officer does not require Respondent No.1 for custodial interrogation for the purpose of further investigation. Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail. We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the High Court granting anticipatory bail to the accused should be quashed and set aside. In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and,

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therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."

7. Thus while taking into consideration the ratio laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre (supra) as also ratio laid down in other decisions as stated above, I have gone through the contents of the FIR, which is placed on record and also

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considered the affidavit of the investigating officer filed before the learned Judge concerned opposing the bail application preferred by the applicant. Upon going through the contents of the FIR, it appears that prima facie case is made out against the applicant and material collected so far suggests the involvement of the applicant in the commission of crime.

8. It is required to be noted at this stage that the Hon'ble Supreme Court in catena of judicial pronouncements have observed that a court may reject an anticipatory bail application when custodial interrogation is deemed necessary for a thorough investigation, even if the applicant argues that such interrogation isn't required. Further, while custodial interrogation can be a factor in denying anticipatory bail, it is not the sole determinant, and courts will also consider other factors related to the severity of the offense and the need for a comprehensive investigation.

9. In the above facts and circumstances and considering the observations on the legal aspect of the matter, as applicant is actively involved in the offence, I have absolutely no doubt that if applicant is equipped with such an order of anticipatory bail before he is interrogated by the Police, in that event, it would greatly harm the investigation and would impede the prospects of unearthing the serious offence and applicant may again indulge in such type of criminal activities. Therefore, I do not find any exceptional ground to exercise its discretionary jurisdiction under Section 482 of

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the BNSS to grant anticipatory bail. More so, investigation is still going on in the present case. It is settled proposition of law that power exercisable under Section 482 BNSS, is somewhat discretionary in character and it is to be exercised with caution in exceptional cases.

10. Hence, the present application seeking for anticipatory bail is hereby rejected.

11. Needless to say that observations and findings made hereinabove are limited to the decision of these pre- arrest bail applications, and shall not influence any other proceedings arise from impugned FIR.

(DIVYESH A. JOSHI,J) AMIT ITALIAN