Ushaben Rajendra Joshi vs State Of Gujarat
2025 Latest Caselaw 933 Guj

Gujarat High Court

Ushaben Rajendra Joshi vs State Of Gujarat on 16 July, 2025

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                              R/CR.A/1633/2025                                          ORDER DATED: 16/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/CRIMINAL APPEAL (FOR ANTICIPATORY BAIL) NO. 1633 of 2025

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                                                 USHABEN RAJENDRA JOSHI & ANR.
                                                             Versus
                                                    STATE OF GUJARAT & ANR.
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                       Appearance:
                       MS NAMRATA H DAVE(10172) for the Appellant(s) No. 1,2
                       MR DEVARSH P PANDYA(12986) for the Opponent(s)/Respondent(s) No. 2
                       MR. NIRAJ SHARMA, LD. ADDL. PUBLIC PROSECUTOR for the
                       Opponent(s)/Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                                              Date : 16/07/2025

                                                               ORAL ORDER

1. Rule. Learned APP waives service of notice of rule for respondent - State of Gujarat and learned advocate Mr. Devarsh Pandya waives service of notice of rule for and on behalf of the original complainant.

2. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the appellants, who are original accused nos.3 and 4 respectively, have prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No. 11191020250178/2025 of 2025 registered with Vastrapur Police Station, Ahmedabad for the alleged offences as mentioned in the FIR.

3. Heard learned advocate, Mr. Hriday Buch for the appellants, learned APP Mr. Hardik Soni for the respondent - State of Gujarat and learned advocate, Mr. Devarsh Pandya for the original complainant.

4. Learned advocate, Mr. Buch has referred to the allegations

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leveled in the FIR and submitted that so-called incident has occurred during the period between 10.11.2024 to 28.12.2024, for which, FIR has been lodged on 19.04.2025 and thus, there is gross delay in registration of the aforesaid FIR. He further submitted that the FIR has been lodged against total 6 accused persons, wherein the appellants are shown as accused nos.3 and 4 respectively and if the Hon'ble Court would make cursory glance upon the allegations leveled in the FIR, in that event, it is found out that all the allegations are leveled against the original accused no.1, who happens to be the son of the present applicants, who introduced the present applicant No.1 as a broker to the complainant. He further submitted that initially, the aforesaid FIR has been lodged in the Police Station at State of Maharashtra, however thereafter, it has been transferred before Vastrapur Police Station, Ahmedabad as the so-called incident has taken place here. He has taken me through the contents of the FIR and submitted that the allegations are in two parts, i.e. with regard to breach of trust and cheating after giving attractive scheme and commission of rape against her will and wish. He further submitted that as per the case of the complainant, she was asked to invest certain amount in land on the ground of good returns and then, pocketed an amount of Rs.1,25,00,000/- and golden ornaments worth of Rs.75,00,000/- and, thereafter against her will and wish, the original accused no.1 had developed physical relationship at the house of the accused no.1 and/or at hotel on different dates. He, however, submitted that bare perusal of the contents of the FIR, it is clear that all those allegations

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are against the original accused no.1 and not against the present appellants but it seems that as the appellants are closely related to the original accused no.1, they have been wrongly arraigned as accused in the commission of crime with a sole intent to pressurize him. He further submitted that in fact, at the time of commission of so-called incident, none of the appellants was present there and thus, there is not direct or indirect involvement of the appellants in the commission of crime. He has referred to the bank statements produced on record and submitted that though it is alleged that the original accused no.1 has pocketed huge amount from the complainant, as per the said bank statement, the accused no.1 had received around Rs.79-80 lakhs from the complainant and out of which, the accused no.1 has already return back Rs.56.00 lakhs and thus, around Rs.15.00 lakhs are remaining. He further submitted that in fact, the golden ornaments received from the complainant were mortgaged and the original accused no.1 had received Rs.35,00,000/- from it, however, the said amount has already been repaid to the original complainant. He, under the instructions, submitted that in fact, the appellants are ready and willing to repay the said amount within some reasonable time. He further submitted that in fact, the complainant is aged about 33 years and with her own will and wish, she has entered into the scheme of investment as also entered into physical relationship with the original accused no.1, wherein as stated above, none of the appellants has direct or indirect involvement in the commission of crime. He, therefore, submitted that considering the above facts and the nature

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of allegations leveled against the appellants, custodial interrogation at this stage is not necessary and the appellants will themselves keep available during the course of investigation, trial also and will not flee from justice. He further submitted that the appellants are ready and willing to abide by all the conditions including imposition of conditions while releasing the appellants on anticipatory bail. It is, therefore, urged that considering the above facts, the appellants may be granted anticipatory bail.

5. Learned advocate, Mr. Pandya for the original complainant has opposed grant of anticipatory bail looking to the nature and gravity of the offence. He submitted that in fact, the documents collected during the course of investigation clearly suggest the involvement of the appellants in the commission of crime right from the beginning. He submitted that all the accused in connivance with each other met multiple times to the complainant and gave attractive offer of good returns if she would invest in land and thereby the accused have pocketed huge amount from the complainant. He submitted that as the original accused no.1 is the Government officer, the account of the co- accused was used in the commission of crime and the said fact is clearly found out from the investigation papers, and therefore, it cannot be said that the appellants herein are not at all involved in the commission of crime and in fact, both were having knowledge of the offence committed by the accused no.1 and they are beneficiaries of the fraud committed by the original accused no.1. He further submitted that so far as the allegations under the Atrocities Act are concerned, it is admitted position of fact that for the

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purpose of invoking the charge under the Atrocities Act, particular word in public view is not required to be leveled because if the offence is committed against the person of a particular community knowing fully well that the said person is belonging to a particular community, in that event, it would fall under the provisions of the Atrocities Act, therefore, the ingredients of the alleged offences under the Atrocities Act are fulfilled. It is, therefore, urged that the discretion in favour of the appellants may not be exercised and the present appeals may be dismissed.

6. At this stage, learned advocate submitted that it is an admitted position of fact that parameters for the grant of regular bail and anticipatory bail are different and while considering the application for anticipatory bail, the Hon'ble Court must be slow while exercising the discretionary relief. In support of the aforesaid submissions, learned advocate has placed reliance upon following decisions, (1) the judgment of the Hon'ble Supreme Court in case of Pratibha Manchanda & Anr. Vs. State of Haryana & Anr., reported in (2023) 8 SCC 181; (2) the judgment of the Hon'ble Supreme Court in case of Shantaben Bhurabhai Bhuriya Vs. Anand Athabhai Chaudhari & Ors., reported in (2022) 15 SCC 228;

(3) the judgment of the Hon'ble Supreme Court in case of Union of India Vs. State of Maharashtra & Ors., reported in (2020) 4 SCC 761;

(4) the judgment of the Hon'ble Supreme Court in case of Ravinder Kumar & Anr., Vs. State of Punjab, reported in (2001) 7 SCC 690;

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(5) the judgment of the Hon'ble Supreme Court in case of Adcon Electronics Pvt. Ltd. Vs. Daulat & Anr., reported in (2001) 7 SCC 698;

(6) the order passed by the Hon'ble Supreme Court in case of Sumitha Pradeep Vs. Arun Kumar C.K. & Anr., delivered in Criminal Appeal No.1834/2022 (7) the order passed by this Hon'ble Court in case of Dodiya Navalsinh Babubhai Vs. State of Gujarat delivered in Criminal Misc. Application No.23421/2023 by an order dated 13.02.2024; (8) the order passed by this Hon'ble Court in case of Akash Ganeshbhai Makwana Vs. State of Gujarat delivered in Criminal Misc. Application No.20549/2023 by an order dated 05.10.2023; (9) the order passed by this Hon'ble Court in case of Hasmukhbhai Rambhai Patel Vs. State of Gujarat delivered in Criminal Misc. Application No.11254/2020 by an order dated 2408.2020;

7. Referring to the ratio laid down by the Hon'ble Supreme Court as well as this Hon'ble Court in the aforesaid decisions, it is submitted that the appellants are not entitled for any relief as claimed, therefore, the present appeals may be dismissed.

8. Learned APP Mr. Soni appearing on behalf of the respondent

- State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. He submitted that there are material available on record, which suggests the involvement of the appellants in the commission of crime and the investigation is at crucial stage, therefore, no discretion may be exercised in favour of the appellants and

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the present appeals may be dismissed.

9. Having heard the learned advocates appearing for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) the nature and gravity of the accusation; (ii) the antecedents of the appellant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the appellant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the appellant by having him so arrested. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided.

10. Having heard learned advocates for the parties and having considered the allegations leveled in the FIR, it is found out that the allegations are with regard to the cheating and commission of rape upon the complainant against her will and wish. However as can be seen from the contents of the FIR itself, almost all the allegations with regard to committing cheating and rape with the original complainant are against the original accused no.1, who is not before this Court and the original accused nos.3 and 4, who are the parents of the original accused no.1 are before this Court by filing present appeals and all the transactions done by the

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original complainant are with the original accused no.1 and there is no direct or indirect involvement of the present applicants prima facie seems to be there in the commission of crime. So far as the role of the appellants are concerned, the present applicant No.1 was being introduced as the broker with the original complainant. However it is also found out from the record that out of total amount received by the original accused no.1, approximately Rs.59,00,000/- has already been repaid to the original complainant and the appellants have shown willingness to repay the remaining amount within reasonable time, therefore, the appellants shall submit schedule of payment as agreed by them before the court concerned at the time of execution of the bond. Further, I have minutely considered the allegations leveled in the FIR, however considering the role attributed to the present appellants and the facts of the case, prima facie I am of the opinion that ingredients for the alleged offences under the Atrocities Act are not made out against the appellants. Thus considering the above facts of the case, the custodial interrogation of the appellants is not required.

11. Considering the aforesaid aspects and the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1, I am inclined to allow the present appeal. I have also considered the decisions upon

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which reliance has been placed by learned advocate for the complainant, however considering the facts as stated above, those decisions would render assistance to the original complainant considering the limited role attributed to the present appellants.

12. In the result, the present appeal is allowed by directing that in the event of arrest / appearance of the appellants in connection with FIR being C.R. No. 11191020250178/2025 of 2025 registered with Vastrapur Police Station, Ahmedabad, the appellants shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety each of like amount on the following conditions that appellants:

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 21.07.2025 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the appellants;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade them from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change their residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the

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Court and if having passport shall deposit the same before the Trial Court within a week;

(g) an order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigative agency, to investigate into the charges against the person who seeks and is granted pre-

arrest bail;

(h) It is open to the police or the investigating agency to move the learned trial Court for a direction under Section 483(2) to arrest the accused, in the event of violation of any term, such as absconding, non- cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.-

13. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellants on bail. It is clarified that for modification, alternation and/or deletion of any of the conditions imposed upon the appellants, it is open for them to approach the court concerned.

14. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(DIVYESH A. JOSHI,J)

VAHID