Allowed

Bharat Dhanjibhai Kathiriya v. State of Gujarat

Gujarat HC13 Feb 2019CR.MA/1135/2019

Case brief

AI extract

What is this about?

The High Court of Gujarat granted anticipatory bail to an accused in a cheating and fraud case. Citing prior regular bail grants and lack of need for custodial interrogation, the court allowed the application, directing the applicant to execute a bond and comply with specific conditions.

What did the court decide?

The application is allowed; the applicant is entitled to release on bail upon arrest if remand is applied for, subject to conditions including a personal bond of Rs. 10,000 with one surety.

Bharat Dhanjibhai Kathiriya Vs State of Gujarat — Cheating and Forgery | Gujarat HC (2019)

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R/CR.MA/1135/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL MISC.APPLICATION NO. 1135 of 2019

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BHARAT DHANJIBHAI KATHIRIYA

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Versus

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STATE OF GUJARAT

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Appearance:

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MR PUNAM G GADHVI(3724) for the PETITIONER(s) No. 1
VAISHALI J SHAH(8753) for the PETITIONER(s) No. 1
MS SHRUTI PATHAK APP(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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Date : 13/02/2019

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ORAL ORDER

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By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for anticipatory bail in connection with the FIR being C.R. No. I– 257/2018 registered with Vastrapur Police Station, Ahmedabad for the offenses punishable under Sections 406, 420, 114 and 120(B) of the Indian Penal Code and subsequently, Section 3 of the Gujarat Protection of Interest of Depositors (in Financial Establishments) Act, 2003 and Sections 4, 5 and 6 of the Prize, Cheat and Money Circulations Schemes (Banning) Act, 1978.

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Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation, trial also and will not flee from

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Page 1 of 10

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R/CR.MA/1135/2019 ORDER

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justice.

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Learned advocate appearing for the applicant submitted that till date, four different FIRs are registered against the applicant, out of which, the applicant has been released on regular bail in two cases by the concerned Designated Court after verifying the affidavit filed by the concerned Investigating Officer and after considering the investigation papers and in support of it, he has placed on record copies of the orders passed in Criminal Misc. Application No.3319/2018 and Criminal Misc. Application No.3283/2018, which are taken on record. It is submitted that so far as the present case is concerned, as per the allegations leveled in the FIR, the complainant has invested an amount of Rs.25,000/-, out of which, he has received an amount of Rs.6,500/- as commission, however, remaining amount of Rs.18,500/- is not received back because of the fraud committed by the concerned accused. It is submitted that as per the affidavit filed by the Investigating Officer, total scam is of Rs.7,82,00,000/- and more, however so far as the present application is concerned, only allegation is with regard to an amount of Rs.18,500/-. Learned advocate for the applicant has referred to the reasons assigned by the Designated Court while releasing the applicant on regular bail in two other cases and contended that if after the arrest, the applicant is going to be released on bail by the Designated Court then, this Court may release the applicant on anticipatory bail.

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Page 2 of 10

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R/CR.MA/1135/2019 ORDER

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4.It is further submitted that in other two cases,
after the arrest of the applicant, the concerned
Court has granted remand and during the course of
custodialinterrogation,theconcerned
Investigating Officer has obtained necessary
information and, therefore, now custodial
interrogation of the applicant in the present FIR
is not required. He, therefore, urged that the
present application be granted.

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5.Learned advocate for the applicant on instructions
states that the applicant is ready and willing to
abide by all the conditions including imposition
of conditions with regard to powers of
Investigating Agency to file an application before
the competent Court for his remand. He further
submit that upon filing of such application by the
Investigating Agency, the right of applicant-
accused to oppose such application on merits may
be kept open. Learned advocate, therefore,
submitted that considering the above facts, the
applicant may be granted anticipatory bail.

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6.Learned APP has vehemently opposed the present
application and contended that the applicant is
involved in a serious crime, wherein number of
persons have been duped in the scheme floated by
the main accused, Vinay Shah. It is submitted that
during the course of investigation, the
Investigating Officer has recorded the statements
of more than 875 witnesses, who are the victims of
the scheme floated by main accused, Vinay Shah. It
is further submitted that the applicant is one of
the members in the core group. It is submitted

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Page 3 of 10

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R/CR.MA/1135/2019 ORDER

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that the main accused, Vinay Shah has created Core
Committee group in the WhatsApp and the applicant
is one of the members in the said group. Learned
APP has also pointed out the chart showing total
commission received by the concerned applicant and
the said data was collected from KCS, who are the
service provider and after analysis of the
material, it is revealed that the applicant herein
has received sizable amount by way of commission
from the members, who have invested the amount in
the scheme floated by the main accused. It is
further submitted that from the statements of more
than 875 witnesses, it is revealed that the scam
is of more than Rs.7,82,00,000/- and, therefore
looking to the gravity of the offence, the present
applicant may not be released on anticipatory
bail.

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Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant.

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8. This Court has considered the following aspects,

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(a)the FIR is filed for the offence under
Sections 406, 420, 114 and 120(B) of the
Indian Penal Code and subsequently,
Section 3 of the Gujarat Protection of
Interest of Depositors (in Financial
Establishments) Act, 2003 and Sections 4,
5 and 6 of the Prize, Cheat and Money

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Page 4 of 10

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R/CR.MA/1135/2019 ORDER

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Circulations Schemes (Banning) Act, 1978
are added;

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(b) the applicant is not named in the FIR;

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(c)as per the averments made in the FIR, the
complainant has invested Rs.25,000/- in
the scheme floated by the main accused,
Vinay Shah, wherein the complainant
himself has received commission of
Rs.6,500/- from the said amount invested
by him, which is admitted by the
complainant himself;

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(d)similar two other FIRs are also registered
against the applicant being C.R. No.I-
254/2018 and C.R. NO.I-256/2018 with
Vastrapur Police Station on 13.11.2018 and
in connection with the said FIRs, the
applicantwasarrestedbythe

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investigating agency and the concerned
Court has granted remand and during the
course of custodial interrogation of the
applicant, the Investigating Officer has
received necessary information from the
applicant and, hence, now the custodial
interrogation of the present applicant is
not required as it is revealed from the
investigation that total scam is of
Rs.7,82,00,000/-, which covers allegations
made in all the FIRs filed against the
applicant.

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(e)the concerned Designated Court has
released the applicant on regular bail in
connection with two similar FIRs, copy of

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Page 5 of 10

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R/CR.MA/1135/2019 ORDER

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such orders are produced by learned
advocate for the applicant and I have gone
through the reasons assigned by the
concerned Designated Court in the said
order while releasing the applicant on
regular bail. It is required to be noted
that similar type of affidavit was filed
by the concerned Investigating Officer
while opposing the bail application of the
applicant in other FIRs, wherein the
applicant was arrested and inspite of
pointing out the fact that total scam is
of Rs.7,82,00,000/-, the applicant was
released on regular bail by the concerned
Designated Court. In the present case
also, similar type of affidavit is filed
by the Investigating Officer opposing the
application filed by the applicant in the
present matter before the concerned
Designated Court;

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(f)while opposing the bail application of the
present applicant before the concerned
Designated Court, the Investigating
Officer has also pointed out the fact that
the applicant has received the commission
and despite that fact, the concerned
Designated Court, has released the
applicant on regular bail;

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(g)other members of the core group are also
released on regular bail by the concerned
Designated Court as submitted by learned
advocate for the applicant;

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Page 6 of 10

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R/CR.MA/1135/2019 ORDER

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(h) it is also revealed from the investigation papers that in other two cases also, similar type of allegations have been leveled against the applicant;

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(i) even from the investigation papers, no other material has been pointed out, which is special in the present FIR, which is not available in other two FIRs, wherein the applicant has been released on bail.

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Further, a useful reference can be made to the judgment of this Court in case of Solanki Ravibhai Dipubhai & Ors. Vs. State of Gujarat & Anr. , reported in 1992 (1) GLR 631 , wherein this Court has made following observations,

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“5. In view of the above discussion, what

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then should be the guiding principles to
exercise discretion under Section 438 of
the Code? Exercise of discretion under
Section 438 of the Code is a stage prior
to exercise of discretion under Section
437 or 439 of the Code. That is prior to
arrest. Thus, if the Court is satisfied
that by allowing the persons apprehending
arrest, the investigation is either to
suffer or is likely to be prejudiced, as
it may appear on perusing the case diary,
the Court should refuse to exercise such
discretion. On the other hand, if such
person remained at large, the prosecution
is neither to be prejudiced nor suffer any
hindrance, then the application is
required to be considered like one of the

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Page 7 of 10

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R/CR.MA/1135/2019 ORDER

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person arrested of non-bailable offence
asking for bail. If from the facts and
circumstances and evidence on record
(including case diary), if person can be
granted bail, even if arrested, then there
may be no harm in granting anticipatory
bail to such person, because such person
is likely to be released on bail even if
arrested. Keeping in mind this position of
law having emerged from the discussion
hereinabove, it is to be considered
whether the applicants are entitled to
excercise of discretion in their favour.“

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Thus from the aforesaid decision rendered by
this Court, it can be said that if from the facts
and circumstances and evidence on record, if
person can be granted bail, even if arrest then,
there may be no harm in granting anticipatory bail
to said person because such person is likely to be
released on bail even if arrested.

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Therefore in view of the above, it is clear that the applicant has already been released on regular bail in connection with other two offences and, hence, if the applicant is going to be released on regular bail in the similar set of facts then, the anticipatory bail is required to be granted to the concerned person. Thus, the applicant is entitled to regular bail and therefore, there is no impediment in granting anticipatory bail to the present applicant. Thus in view of the above, this Court is inclined to exercise the discretion in favour of the applicant by releasing him on

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Page 8 of 10

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R/CR.MA/1135/2019 ORDER

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anticipatory bail.

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This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694 , wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab , reported at (1980) 2 SCC 665 .

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In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No. I–257/2018 registered with

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Vastrapur Police Station, Ahmedabadon their
executing a personal bond of Rs.10,000/- (Rupees
Ten Thousand Only) with one surety of like amount
on the following conditions:

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

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(b) shall remain present at concerned Police Station on 20.02.2019 between 11.00 a.m. and 2.00 p.m.;

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(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 him from disclosing such facts to the court or to any police officer;

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(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;

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(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;

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(f) shall not leave India without the

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R/CR.MA/1135/2019 ORDER

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

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(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;

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Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

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14.At the trial, the Trial Court shall not be
influenced by the prima facie observations made by
this Court in the present order.

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

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Gautam

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Bharat Dhanjibhai Kathiriya v. State of Gujarat

Case brief

What is this about?

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Bharat Dhanjibhai Kathiriya v. State of Gujarat

Case brief

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