1. “Liberty” is most precious of all the human rights. One realizes the value of “Liberty” only when he is deprived of it.
2. Rule. Learned APP waives service of rule on behalf of respondent – State and learned advocate Mr.C.B.Upadhyay waives service of rule on behalf of complainant.
3. All present pre-arrest bail applications filed under section 438 of Cr.P.C. pertain to same offence being C.R.No.I- 11208053230547 of 2023 registered with Rajkot Taluka Police Station, Rajkot for the offence punishable under sections 406, 420 and 120(B) of Indian Penal Code. In view of above, with consent of both the sides, all the pre-arrest bail applications are disposed of by this common order.
4. Facts of the case are as under :-
4.1. The brief facts leading to the filing of the present petition are that the original complainant – Respondent No.2 herein, who was working as personal assistant to late Shri Guru Hariprasaddasji, lodged the impugned FIR with the Rajkot Taluka Police Station, alleging that Atmiya University is managed by Sarvoday Kelavani Mandal. This Trust was taken over by late Shri Guru Hariprasaddasji from its original trustees in the year 1986 and thus, Shri Guru Hariprasaddasji became the President of the said Trust.
4.2. It is further alleged by the complainant that Atmiya University is managed by one Sarvoday Kelavani Mandal which is a Trust which was taken over by Sadhu Shri Guru Hariprasaddaoji in the year 1986 from its original trustees and Sadhu Shri Guru Hariprasaddasji is the President of Trust as per the PTR (Public Trust Register) record. is further alleged that Sadhu Shri Tyagvallabhdes is the Secretary of the Trust as per the record. Since Sadhu Shri Guru Hariprasaddasji was residing at Sokhda, all the management of all educational institutions under Atmiya University and other educational institutions under the trust was given to the Sadhu Shri Tyagvallabhdas. It is further alleged in the FIR that Sarvoday Kelavani Samaj is one of the trust working under Haridham Sokhda Akshar Purshotam Mandir and the same is managed by amount of donation that is received by the devotees. It is further alleged in the impugned FIR that on 26.07.2021 Sadhu Shri Guru Hariprasaddasji had passed away and thereafter it came to the knowledge of the Complainant that the trust managed under Haridham Sokhda have been mismanaged and irregularities have been committed by Sadhu Shri Tyagvallabhdasji and Sadhu Shri Guru Premswaropdasji. The complainant has alleged that therefore the complainant had started to inquire and during this inquiry the complainant came to know that in connivance with the Secretary of Sarvoday Kelavani Samaj one Dharmesh Rameshchandra Jivani who is one of the trustee, alongwith his wife Vaishakhi Jivani and one Nilesh Batukbhai Makwana have misappropriated and siphoned an amount to the tune of Rs.33 crores from the Sarvoday Kelavani Mandal Trust.
4.3. It is further alleged that in the year 2004 a bank account in the name of Atmiya Tech Utkarsh was opened in State Bank of India by the Secretary of Sarvoday Kelavani Samaj and others. It is further alleged that an amount of Rs.3 crores 36 lakhs in instalments were deposited in this account from the various educational institutions of the Trust and thereafter, one IT service retail agreement was entered into by the Trust with one Infinity Works Omni Channel Pvt. Ltd. and amount of Rs.3 crores 36 lakhs was transferred from the account of trust to this company. It is alleged that name of Dharmesh Jivani, his wife Vishakhi and Nilesh Makwana are currently shown as Directors of said company. It is alleged that in connivance with the Secretary of the Trust and the Directors of the Pvt. Ltd.Company an amount of Rs.3 Crore 36 lakh was siphoned away by withdrawing cash. It is alleged that no service have been given by the said company as per agreement till date.
4.4. It is further alleged in the FIR that from the year 2014 till date in various institutions working under Sarvoday Kelavani Samaj, monies have been paid to ghost employees, who are not working with the institutions and by crediting salary to their accounts, huge amount has been siphoned off by the Secretary of the Trust, Dharmesh Jivani and Samir Vaidya. It is further alleged that the accused persons have withdrawn various cash amounts on various dates from the accounts of trust and used the same for personal purposes and various investments; and thereby the accused persons have siphoned off an amount to the tune of Rs. 30 Crores. With these allegations the impugned FIR has been lodged by the complainant in Rajkot Taluka Police Station.
5. Learned Senior Advocate Mr.S.I.Nanavati assisted with learned advocate Mr.Vandan Baxi appeared for the petitioner / accused – Samirbhai Kaushikbhai Vaidya in Criminal Misc. Application No.13661 of 2023, learned Senior Advocate Mr. N.D.Nanavati assisted with learned advocate Mr. Hardik Muchhala appeared for the remaining petitioners viz. Vaishakhiben Dharmeshbhai Jivani, Dharmeshbhai Rameshchandra Jivani and Nileshbhai Batkubhai Makwana in Criminal Misc. Application No.14073 of 2023, Criminal Misc. Application No.15141 of 2023 and Criminal Misc. Application No.15074 of 2023 respectively. Learned Senior Advocate Mr. Jal
S. Unwala assisted by learned advocate Mr.C.B.Upadhyay appeared for the complainant. Learned APP Ms. C.M.Shah appeared for the respondent – State.
6. Learned Senior Advocate Mr.S.I.Nanavati would submit that main accused of the offence – Sadhu Tyagvallabhdas Guru Hariprasaddasji had filed Special Criminal Application No.8030 of 2023 before this Court for quashing the complaint. He would submit that Co-ordinate Bench of this Court on 01.07.2023 passed order in favour of that petitioner and restrained the respondent authority from taking any coercive steps. He would submit that first informant preferred Special Leave to Appeal (Criminal) No.7937 of 2023 before the Hon’ble Apex Court questioning the interim order. The Hon’ble Apex Court directed this Court to pass reasoned order for interim protection that was granted on 01.07.2023. This Court on 26.10.2023 passed reasoned order and protected the main petitioner by assigning reasons. The order is again carried to challenge before the Hon’ble Apex Court by filing Special Leave to Appeal (Criminal) No.14542 of 2023. Hon’ble Apex Court since was not inclined to entertain the petition, said petition was withdrawn. As such order dated 26.10.2023 passed by this Court has been confirmed. He would further submit that Criminal Misc. Application No.19483 of 2023 filed for anticipatory bail by Sadhu Tyagvallabhadas Guru Hariprasadasji has been allowed by the Co-ordinate Bench observing that Investigating Officer has to follow mandatory provision of section 41-A of the Cr.P.C. This submission has been canvassed to submit that principle of parity is attracted in the present case as all the petitioners herein are alleged to have played lessor role in commission of offence then main accused Sadhu Tyagvallabhadas Guru Hariprasadasji.
6.1. Apart from above submission, first limb of submission of learned senior Advocate Mr. S.I.Nanavati is that for the offence under section 406 and 420 of IPC, maximum punishment which can be imposed in successful conviction is upto 7 years. In that circumstances, guidelines issued by the Hon’ble Apex Court in the case of Arnesh Kumar v/s. State of Bihar [(2014) 8 SCC 273] [LQ/SC/2014/671] and reiterated in the case of Md. Asfak Alam V/s. State of Jharkhand & Anr. [2023 INSC 660] [LQ/SC/2023/789 ;] is applicable to the facts of the present case. He would further submit that pursuant to directions issued by the Hon’ble Apex Court in the case of Md. Asfak Alam (supra), High Court of Gujarat issued Circular No.C.2703/81 dated 25.08.2023. Circular and guidelines issued by the High Court of Gujarat is squarely applicable to the facts of the present case. This submission has been canvassed to submit that since maximum punishment which could entail successful conviction is upto 7 years and thus, there should not be any mechanical arrest of the accused for such offence. Learned Senior Advocate would submit that present petitioner remained present before the Investigating Officer on 06.07.2023 and joined investigation and thus, now nothing remains in the case. As such, it is fit case to grant anticipatory bail.
6.2. Learned Senior Advocate Mr.S.I.Nanavati would submit that though complaint is filed under section 406 and 420 of IPC, role of the complainant is like whistle blower. It is not alleged that any of his personal property was entrusted to accused or complainant has not been deceived. As such necessary ingredient of criminal breach of trust stated in section 405 of IPC read with section 415 of IPC where cheating is defined is not prima facie visible from FIR. Thus, it is submitted that if FIR is accepted as it is it would not fall within essential ingredient of section 406 and 420 of IPC as first informant is not victim of alleged offence but he has played role of whistle blower. He would submit that the petitioner is not named in the FIR. He would further submit that entire FIR is in two part. First part states that amount of Rs.33 Crores has been illegally withdrawn from Sarvoday Kelavani Mandal Trust. Out of said amount, salaries are said to have been paid to ghost employees / teachers. This procedure has been adopted to siphon money of the Trust. It is submitted that such has happened from the year 2014 to 2017 as per contents of FIR, but the present petitioner was not Secretary during that time period. He joined the Trust as Secretary in the year 2018. He would submit that the petitioner is not signatory to the bank account nor he has any control over account of Trust. In that circumstances, he would submit that present FIR being false is filed to settle personal score.
6.3. Learned Senior Advocate Mr. S.I.Nanavati would submit that apart from present petitioner there are several persons who are trustees of Sarvoday Kelavani Samaj. First informant has chosen some of the trustees to array as accused against whom he has objection as they belong to other side and left other trustees who are nearer to him. He would submit that in view of above aspect, since the petitioner is readily available for investigation and has deep root in the society and has sufficient movable and immovable property which indicates that there is no flight risk, the petitioner may be granted pre-arrest bail as to avoid from humiliation of arrest. It is further submitted that the petitioner is ready and willing to abide conditions which may be imposed by this Court while granting pre-arrest bail.
7. For the rest of the petitioners, learned Senior Advocate Mr.N.D.Nanavaty would submit that for the alleged offence, maximum punishment is upto 7 years. Arrest cannot be ipso facto. Reading entire FIR, he would submit that FIR is in two part. Some of the allegations are levelled against Trustees of Sarvoday Kelavani Samaj and some of the allegations are levelled against Director of Infinity Works Omni Channel Pvt. Ltd. He would submit that according to FIR main accused – Sadhu Tyagvallabhdas Guru Hariprasaddasji has opened one bank account in name of Trust – Atmiya Tech Utkarsh. This account was ghost account and then entire amount of Rs.2,96,43000/- firstly was received in this account and then was transferred to account of Infinity Works Omni Channel Pvt. Ltd. He would further submit that first informant has levelled allegations against selectively and chosen persons from rival group to be accused. He would further submit that none of the above petitioners are Managing Director of the Company. One Anil Pagar is Managing Director of the company. Anil Pagar is not been joined as accused. He would submit that according to FIR MOU with company has been executed with signature of Anil Pagar. Amount is also received through MOU and yet Anil Pagar has not been named as accused in the FIR which indicates that FIR is filed to settle personal score. He would submit that role of the petitioners is no more than Directors of the Company. Amount which is said to have been siphoned is lying with the bank account of company. He would further submit that Vaishakiben who is Director has not played any active role nor Dharmeshbhai or Nileshbhai. He would submit that another Director – Manisha who is sister of Anil Pagar is not joined as accused in the FIR which indicates that first informant has filed FIR selecting persons who are siting in rival group which is sufficient to say that first informant who failed to get any relief from Charity Commissioner filed FIR to settle score. He would submit that almost verbatim to FIR, petition was filed before the Charity Commissioner under section 41A of the Bombay Public Trust Act for getting relief. However, yet no relief is granted. He would further submit that first informant is admittedly not handling any post in the Trust for which it is alleged that criminal breach of trust and cheating has been done. First informant is alien and played role of “Jagrut Nagrik”. It is also submitted that in all 30 litigation are filed with regard to dispute and first informant is leading in almost all litigation which exposes that FIR is sponsored FIR. He would submit that taking averments made in the FIR, at the most it can be construed as civil transaction, If company has committed breach of contract, trust can take action against company for recovering amount, but by no means offence under section 406 and 420 of IPC is made out.
7.1. Learned Senior Advocate Mr.N.D.Nanavaty taking this Court through affidavit filed by Investigating Officer before the learned Trial Court would submit that in the present case, Investigating Officer is playing role hand and glove with first informant and without issuing notice under section 41A of Cr.P.C. categorically stated that he is satisfied about arrest of the petitioners which is clearly breach of mandatory guidelines issued by the Hon’ble Apex Court in the case of Arnesh Kumar (supra) and reiterated in the case of Md. Asfak Alam (supra) as well as Circular issued by this Court.
7.2. Lastly, learned senior Advocate Mr.N.D.Nanavaty would submit that even otherwise entire allegation pertain to documentary evidence. They are within the hands of Investigating Officer or he can obtain from bank etc. and in that fact, no custodial interrogation is required. Placing reliance on the judgment of the Hon’ble Apex Court in the case of Satender Kumar Antil v/s. CBI [(2022) 10 SCC 51] [LQ/SC/2022/823 ;] as well as Satender Kumar Antil v/s. CBI [2023 (0) JX (SC) 523], he would submit that the petitioners may be granted pre-arrest bail on suitable terms and conditions.
8. On the other hand, learned Senior Advocate Mr. Jal Unwala assisted by learned advocate Mr.C.B.Upadhyay for the complainant would submit that as all the petitioners have withdrawn quashing petitions principle of parity would not attract in the present case as order passed by this Court in quashing petition has been taken as aid by the Co-ordinate Bench in grating relief under section 41A of the Cr.P.C. in favour of Sadhu Tyagvallabhdas Guru Hariprasaddasji. Thus submits that principle of parity has no role to play in the present case. Moreover, it is submitted that section 41A does not prohibit Investigating Officer from arresting accused for the offence whereby maximum punishment is upto 7 years. He would submit that though one of the petitioner i.e. Samirbhai remained present on 06.07.2023 before the Investigating Officer, other petitioners did not remain present before the Investigating Officer to join investigation. Thus principle of parity would not apply. Again on the principle of parity it is argued that since this Court in Criminal Misc. Application No.19483 of 2023 has not decided merits of the case and discussed role of accused alleged to have been played in the FIR, principle of parity cannot be extended to the present petitioners.
8.1. It is also submitted that Mr.Samir is involved in the offence since beginning as he was member of the Trust prior to he becoming Secretary. So he was knowing transaction of Rs.33 Crores alleged in the FIR. Thus, he cannot escape from the accusation on the ground that he has joined as Secretary in the year 2018. Taking this Court through affidavit filed by the Investigating Officer, it is submitted that IO is satisfied that amount of Rs.33 crores has been siphoned and other petitioners have siphoned amount of about Rs.2 Crores and odd amount by not providing service pertaining to MOU. It is submitted that UGC has also been cheated and upon false submission grant is obtained from them. It is submitted that since accused are not available and to joined investigation or co-operated in investigation, they are required to be arrested. It is submitted that grant of anticipatory bail is extraordinary remedy. The petitioners have to prove extraordinary circumstances to get relief, until then privilege of anticipatory bail cannot be granted. It is also submitted that though first informant is not holding any post in the Trust but he is beneficiary of the Trust and therefore, his locus cannot be questioned. He would submit that the first informant is not whistle blower but he was knowing everything as he was Personal Assistant of late Guru Hari Shri Hariprasaddasji. But at that time, considering position of the petitioners in the Trust, he could not speak anything. At the cost of repetition, it is submitted that benefit of section 41A is not available as Investigating Officer has stated reasons for arrest in the affidavit filed before the learned Trial Court. Thus, it is submitted that the petitions may be dismissed.
9. Learned APP joined her arguments to arguments canvassed by learned advocate for the complainant and submitted that Investigating Officer has assigned reasons for arrest by way of affidavit filed before the learned Trial Court objecting bail. Hence no case is made out to grant pre-arrest bail.
10. No other and further arguments are canvassed.
11. Having heard learned advocates for both the sides, at the outset, this Court is required to refer observation and finding given by the Co-ordinate Bench in Criminal Misc. Application No.19483 of 2023 while deciding anticipatory bail of Sadhu Tyagvallabhdas Guru Hariprasaddasji who is one of the main accused in the alleged offence. Para 3 and 4 of order dated 08.11.2023 reads as under :-
“[3.0] Learned Senior Advocate for the applicant at the outset had drawn attention of this Court to an order dated 26.10.2023 passed by the coordinate Bench in Special Criminal Application No.8030 of 2023 wherein the coordinate Bench has observed in paragraphs 10.10 and 11 as under:
“10.10 In view of the above, the guidelines issued in the case of ‘ARNESH KUMAR’ (Supra) and reiterated in the case of ‘MD. ASFAK ALAM’ (Supra) as well as the circular dated 25.08.2023 issued by the High Court of Gujarat operates / applies in the case of the petitioner herein.
11. For the foregoing reasons, the terms or expression, “... the respondent authority is restrained from taking any coercive steps against the applicant herein.” contained in the order dated 01.07.2023, which is passed by the Coordinate Bench of this Court (Coram: Mr. Samir J. Dave, J.) , shall be governed by the guidelines issued by the Hon’ble Apex Court in the case of ARNESH KUMAR’ (Supra) and reiterated in the case of ‘MD. ASFAK ALAM’ (Supra) as well as by the circular No. Circular No. C.2703/81 dated 25.08.2023 issued by the High Court of Gujarat.”
It is also reported that prior to the aforesaid order passed by the coordinate Bench in the quashing petition, the applicant has appeared before the investigating Officer on 06.07.2023.
[4.0] In view of the above, nothing further is required to be decided in the present matter however, it is clarified that in the event of applicant joins the investigation, the Investigating Officer shall scrupulously follow the mandatory provision as discussed in paragraphs 10.10 and 11 of the order dated 26.10.2023 passed by the coordinate Bench in Special Criminal Application No.8030/2023 as well as the mandatory provision of section 41-A of the CrPC. Further, if the applicant is arrested and produced before the learned Magistrate, the learned Magistrate concerned is also directed to verify the reason and then pass appropriate order prior to authorizing the detention of the applicant.”
12. What appears that Co-ordinate Bench has clearly held that mandatory provisions of section 41A of Cr.P.C. is required to be observed in the case on hand as maximum punishment which entails in successful conviction can be upto 7 years.
13. After referring section 41 and 41A of Cr.P.C. along with section 60(A), the Hon’ble Apex Court in Satender Kumar Antil v/s. CBI [(2022) 10 SCC 51] [LQ/SC/2022/823 ;] in para 21 to 30 has observed as under :-
“21.Section 41 under Chapter V of the Code deals with the arrest of persons. Even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision. If the officer is satisfied that a person has committed a cognizable offense, punishable with imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine, an arrest could only follow when he is satisfied that there is a reason to believe or suspect, that the said person has committed an offense, and there is a necessity for an arrest. Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence. He/she can also be arrested to prevent such person from making any inducement, threat, or promise to any person according to the facts, so as to dissuade him from disclosing said facts either to the court or to the police officer. One more ground on which an arrest may be necessary is when his/her presence is required after arrest for production before the Court and the same cannot be assured.
22. This provision mandates the police officer to record his reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in writing. Similarly, the police officer shall record reasons when he/she chooses not to arrest. There is no requirement of the aforesaid procedure when the offense alleged is more than seven years, among other reasons.
23. The consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offense. Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail.
24. Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Section 41B deals with the procedure of arrest along with mandatory duty on the part of the officer.
25. On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. We need not elaborate any further, in light of the judgment of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 [LQ/SC/2014/671] :
“7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.
7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.
7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest Is it really required What purpose it will serve What object it will achieve It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.
8. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 CrPC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey:
8.1. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 CrPC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.
8.2. Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused.
8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused.
8.4. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.
9. The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.
11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1) (b)(ii);
11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41- A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498- A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.”
"26. We only reiterate that the directions aforesaid ought to be complied with in letter and spirit by the investigating and prosecuting agencies, while the view expressed by us on the non-compliance of Section 41 and the consequences that flow from it has to be kept in mind by the Court, which is expected to be reflected in the orders.
27. Despite the dictum of this Court in Arnesh Kumar (supra), no concrete step has been taken to comply with the mandate of Section 41A of the Code. This Court has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of ‘reason to believe’ and ‘satisfaction qua an arrest’ are mandated and accordingly are to be recorded by the police officer.
28. It is also brought to our notice that there are no specific guidelines with respect to the mandatory compliance of Section 41A of the Code. An endeavour was made by the Delhi High Court while deciding Writ Petition (C) No. 7608 of 2017 vide order dated 07.02.2018, followed by order dated 28.10.2021 in Contempt Case (C) No. 480 of 2020 & CM Application No. 25054 of 2020, wherein not only the need for guidelines but also the effect of non- compliance towards taking action against the officers concerned was discussed. We also take note of the fact that a standing order has been passed by the Delhi Police viz., Standing Order No. 109 of 2020, which provides for a set of guidelines in the form of procedure for issuance of notices or orders by the police officers. Considering the aforesaid action taken, in due compliance with the order passed by the Delhi High Court in Writ Petition (C) No.7608 of 2017 dated 07.02.2018, this Court has also passed an order in Writ Petition (Crl.) 420 of 2021 dated 10.05.2021 directing the State of Bihar to look into the said aspect of an appropriate modification to give effect to the mandate of Section 41A. A recent judgment has also been rendered on the same lines by the High Court of Jharkhand in Cr.M.P. No. 1291 of 2021 dated 16.06.2022.
29. Thus, we deem it appropriate to direct all the State Governments and the Union Territories to facilitate standing orders while taking note of the standing order issued by the Delhi Police i.e., Standing Order No. 109 of 2020, to comply with the mandate of Section 41A. We do feel that this would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years.
30. We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.
Section 87 and 88 of the Code
“87. Issue of warrant in lieu of, or in addition to, summons.—A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest—(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
88. Power to take bond for appearance.—When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.”
14. This Court while passing interim order dated 26.10.2023 in Special Criminal Application No.8030 of 2023 which is not altered by the Hon’ble Apex Court has also observed that mandatory guidelines issued by the Hon’ble Apex Court in the case of Arnesh Kumar (supra) and reiterated in the case of Md. Asfak Alam (supra) would squarely apply to the case on hand. Circular of this Court issued pursuant to directions in the case of Md. Asfak Alam (supra) also indicate that police officer shall not arrest the accused unnecessarily. In condition no.7 of the Circular issued by this Court it is stated as under :-
“(7) Notice of appearance in terms of section 41-A Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing.”
15. In the present case, learned APP failed to point out that condition no.7 of Circular issued by this Court has been complied with and notice of appearance in terms of section 41A has been served to the petitioners within two weeks from the date of institution of case. So there is clear breach of Circular issued by this Court as affidavit filed by the Investigating Officer in defiance of Circular as well as mandatory guidelines issued by the Hon’ble Apex Court in the case of Arnesh Kumar (supra) and reiterated in the case of Md. Asfak Alam (supra).
16. At this state, I may refer to summary / conclusion made in the case of Satender Kumar Antil v/s. CBI [(2022) 10 SCC 51] [LQ/SC/2022/823 ;] which is as under : -
Summary / conclusion
“100. In conclusion, we would like to issue certain directions. These directions are meant for the investigating agencies and also for the courts. Accordingly, we deem it appropriate to issue the following directions, which may be subject to State amendments.:
100.1. The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.
100.2 The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.
100.3 The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non- compliance would entitle the accused for grant of bail.
100.4 All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.
100.5 There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.
100.6 There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth (supra).
100.7 The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.
100.8 The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.
100.9 While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.
100.10 An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders.
100.11 Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.
100.12 All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.”
17. In the present case, there is clear non compliance of section 41 and 41A of the Cr.P.C. and non compliance would entail accused for grant of bail (see summary no.100.3).
18. In ‘Liberty in the Modern State’, Harold Laski has said “An uncontrolled power is the natural enemy of freedom.”
19. In the case of Sanjaychandra v/s. CBI [2012 AIR (SC) 830], the Hon’ble Apex Court while concluding main object of bail observed as follows :-
“…. the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if set at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un- convicted person for the purpose of giving him a taste of imprisonment as a lesson.”
20. Grant or refusal of bail is matter of judicial discretion. Qua judicial discretion, eminent jurist Benjamin Cardozo said that “The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideals of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains.”
21. Hon’ble Mr.Justice Krishna Iyer (as His Lordship then was) in the case of Gudikanti Narasimhulu v/s. Public Prosecutor, High Court of AP [1978 AIR (SC) 429] observed following :-
“Some jurists have regarded the term ‘judicial discretion’ as a misnomer. Nevertheless, the vesting of discretion is the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that that discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular.”
22. Coming back to the case on hand, main accused – Sadhu Tyagvallabhdas Guru Hariprasaddasji is protected by Co- ordinate Bench of this Court. There is clear non compliance of section 41-A of Cr.P.C.. On going through the facts and merits of the case, prima facie it appears that offence is relating to documentary evidence. Presence of petitioners can be secured as they are belonging and living in State of Gujarat.
23. Learned APP failed to point out that there is flight risk. In view of allegations levelled in FIR, entire case revolves around documentary evidence. Thus, no case exist for custodial interrogation. This Court finds that this is fit case to exercise judicial discretion apart from ground of parity available to the petitioners. One of the petitioner has also extended his co- operation in the investigation. Other petitioners have not joined investigation as they were not protected. But upon instructions, learned advocate for the petitioners would submit that the petitioners are ready and willing to join investigation and extend cooperation to the Investigating Officer.
24. Considering scope and object of pre-arrest bail held and observed in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. [2011] 1 SCC 694, [LQ/SC/2010/1322] wherein the Hon’ble Apex Court reiterated the law laid down by the Constitutional Bench in the the case of Shri Gurubaksh Singh Sibbia & Ors. v/s. State of Punjab (1980) 2 SCC 665, [LQ/SC/1980/180] this Court finds it is fit case to exercise judicial discretion in favour of the petitioners. This Court has also taken into consideration law laid down in the case of Sushila Agarwal v/s. State (NCT of Delhi [(2020) 5 SCC 1] [LQ/SC/2020/137] .
25. Before parting with the order, with profit, I may refer observations of the Hon’ble Apex Court in the case of Dataram Singh v/s. State of Uttar Pradesh [(2018) 3 SSC 22]. The Hon’ble Apex Court has held as under :-
"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in
the circumstances of a case.
While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Inhuman Conditions in 1382 Prisons. (2017) 10 SCC 658.
Grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
The discretion to grant or refusal of bail must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory."
26. In the result, the present petitions are allowed by directing that in the event of petitioners herein being arrested pursuant to FIR registered as C.R.No.I-11208053230547 of 2023 registered with Rajkot Taluka Police Station, Rajkot, the petitioners shall be released on bail on furnishing a personal bond of Rs. 25,000/- (Rupees Twenty Five Thousand only) each with one surety of like amount on the following conditions that the petitioners :
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at concerned Police Station on 11.12.2023, 12.12.2023 and 13.12.2023 between 10.00 a.m. and 4.00 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 residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week;
27. If breach of any of the above conditions is committed by the petitioner, the concerned learned Judge will be free to take appropriate action in the matter. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the petitioners on bail as they are limited to decision of the bail applications.
28. Rule is made absolute. Direct service is permitted.
29. In view of above, connected Criminal Misc. Applications for interim relief does not survive and accordingly, stand disposed of.
30. Copy of this order be placed in other main Criminal Misc. Applications.
