Laxmansinh Ram Sinh Devasi vs State Of Gujarat

J. C. Doshi, J

By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as Part A C.R. No.8 of 2019 registered with Gandhinagar CID Crime Police Station.

It is the case of the prosecution in FIR that First Informant is the victim and as per his case, in the year 2013, the first informant shown the opening of the branch of Adarsh Co. Op. Society Limited at opposite complex to his business place and went there understand about the different schemes and thus gave Allure schemes and also given the assurance that if one will invest in the scheme, the amount will be increase at maturity date as per schemes and the investors can withdraw the interest as and when it needed. It is further alleged that after understanding all the schemes the First informant becomes the Agent in the said Society and he and his family members invested in the different schemes and he also brought investment in the society as the Agent and in total Rs.63 Lacs in the different schemes of the said society. It is further alleged that in the Year-2018, when the First informant was in need of amount, went to the office of the said society for withdrawal of the amount wherein, the manager namely, Narendrasinh Kushwah told to the First informant that the amount will come from Head office and then started giving fake promises and therefore, the First Informant visited the Ahmedabad branch and also had meeting with the Managing Directors of the said society namely, Rahul Modi and Mukesh Modi and then came to know about the fraud and cheating. It is further alleged that there was investment of the other clients through the present First Informant and thus in total Rs. 63 Lacs of the First Informant and other customers is invested in the scheme of the Said Society through the First Informant and the said society had committed the offence of cheating and fraud by collecting the money in the head of investment and not returning back to the investor on maturity day and subsequently, said FIR is filed.

Heard learned advocate Mr. Chitan Patel for the petitioner and learned APP.

Learned advocate for the petitioner would submit that the petitioner is innocent and falsely implicated in the offence in question. He would further submit that there is delay in registration of the impugned FIR and as such, no satisfactory reason for causing delay has been given by the first informant. He would further submit that the petitioner is not named in the FIR and no such role is attributed to the petitioner. He would further submit that looking to the charge sheet, only the name of the petitioner as Director is shown and there is no concrete proof against the petitioner. He would further submit that the petitioner has not received any monetary benefit from the said offence and the role attributed to the petitioner is only he is the Dummy director. Upon such submission, he submits to grant bail to the petitioner.

On the other hand, learned APP would submit that the petitioner is absonding and therefore, non-bailable warrant u/s 70 of the Code of Criminal Procedure, 1973 is issued against the petitioner and as such, the petitioner is not cooperating with the investigation. Upon such submission, he submits to dismiss this petition.

Having heard learned advocates for both the parties, at the outset, it is required to be noted that this Court in the case of other co-accused person has rejected the anticipatory bail as per order passed in CR.MA No.3542 of 2024 dated 06/03/2024 who is also facing the same charges. What further appears that the first informant is the victim of the scheme in which he has invested around Rs.63 lakh in different scheme of the society. The petitioner was the Dummy director of the said society and it is not possible that the petitioner was not known about the scheme being fraud. Further, the petitioner is not cooperating with the investigation and therefore, a nonbailable warrant u/s 70 of the Code is issued against the petitioner. Thus, if the petitioner is enlarged on anticipatory bail, there are chances of tampering with the investigation. Thus, considering all these aspect, the custodial interrogation of the applicant is necessary and therefore anticipatory bail cannot be granted. The argument of the learned Advocate for the petitioner is that he is a dummy director and behind the back of the petitioners some other persons have taken the financial gain is not tenable in the eye of law as the petitioner in the capacity of Director has committed fraud with the innocent persons and huge financial fraud is committed and therefore the Court would be slow in granting bail in the economic offence which is nowadays a new fashion of committing white collar offence.

In case of Pratibha Manchanda and another Vs. State of Haryana and another reported in (2023) 8 SCC 181, the Hon’ble Apex Court in para 21, observed as under:-

“21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free binvestigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome.”

Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused, but several other purposes. Power u/s 438 of the Code is an extraordinary power and the same has to be exercise sparingly in appropriate and fit case. This privilege should be extended only in exceptional cases. It is a judicial discretion conferred upon the court, and it is to be properly exercised after application of mind as to the nature and gravity of the accusation, possibility of the applicant fleeing from justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the Court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the Court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. The fact of the case demands custodial interrogation of the petitioner. Under the circumstances, the petitioner is not entitled for anticipatory bail.

For the foregoing reasons, present petitions fail and stand dismissed.