Nayan Pravinbhai Patel v. State Of Gujarat

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicantaccused 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.

2. 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 justice.

3. 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.

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 custodial interrogation, the concerned 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.

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.

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 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.

7. 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.

8. This Court has considered the following aspects,

(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 Circulations Schemes (Banning) Act, 1978 are added;

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

(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;

(d) similar two other FIRs are also registered against the applicant being C.R. No.I 254/2018 and C.R. NO.I256/2018 with Vastrapur Police Station on 13.11.2018 and in connection with the said FIRs, the applicant was arrested by the 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.

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

(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;

(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;

(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;

(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.

9. 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 [LQ/GujHC/1991/343] , wherein this Court has made following observations,

"5. In view of the above discussion, what 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 person arrested of nonbailable 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."

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.

10. 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 anticipatory bail.

11. This Court has also taken into consideration the law laid down by the Honble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694 , [LQ/SC/2010/1322] wherein the Honble 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 [LQ/SC/1980/180] .

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

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

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

(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;

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

(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;

13. 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.

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

15. Rule is made absolute to the aforesaid extent.

Direct service is permitted.