Gujarat High Court
Maldev Ramubhai Bharwad vs State Of Gujarat on 26 June, 2025
NEUTRAL CITATION
R/CR.MA/11430/2025 ORDER DATED: 26/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11430 of 2025
(FOR ANTICIPATORY BAIL)
=======================================================
MALDEV RAMUBHAI BHARWAD
Versus
STATE OF GUJARAT
=======================================================
Appearance:
MR SALIM M SAIYED(5172) for the Applicant(s) No. 1
MR RAJAN J PATEL(6775) for the Respondent(s) No. 1
MR NIRAJ SHARMA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 26/06/2025
ORAL ORDER
1. The applicant is an accused of an FIR being C.R.
No.11191008250294/2025 registered with Chandkheda
Police Station for the offences under Sections
406, 420, 467, 468 and 114 of the Indian Penal
Code.
2. Heard learned advocate, Mr. Salim Saiyed for the
applicant, learned APP Mr. Niraj Sharma for the
respondent – State of Gujarat and learned
advocate, Mr. Rajan Patel for the original
complainant.
3. Learned advocate submitted that FIR is lodged
against total 3 accused persons, wherein the
applicant is shown as accused no.3, however except
the present applicant, other accused has already
been arrested and, thereafter, released on bail.
He submitted that it is the case of the
complainant that all three accused, in connivance
with each other, have hatched conspiracy to cheat
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the complainant and under the guise of execution
of the sale deed in his favuor, Rs.51,00,000/-
have been taken from the complainant and after
receiving the said amount, for one reason or
other, they were evading to execute the sale deed
and, thereafter, the accused have stopped picking
up the calls of the complainant and on demand of
it, one of the accused had issued cheque to the
complainant and when the said cheque was deposited
by the complainant, it was dishonoured, therefore,
the proceedings under the provision of the NI Act
have been instituted, copies of such documents are
produced on record and, thereafter, the aforesaid
FIR has been lodged. He submitted that the serious
allegations leveled against the accused is that
they have shown one power of attorney purportedly
prepared by the original land owner and on the
strength of it, the accused have given assurance
to sale the land in his favour, however, all those
documents have already been collected by the
Investigating Officer during the course of
investigation, therefore, now custodial
interrogation of the applicant is not required and
all the offences are exclusively triable by the
Court of Magistrate. Thus making above
submissions, it is urged that the applicant may be
enlarged on anticipatory bail as considering the
nature of allegations, custodial interrogation at
this stage is not necessary an the applicant will
keep himself available during the course of
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investigation, trial also and will not flee from
justice and is ready and willing to abide by all
the conditions including imposition of conditions
while releasing the applicant on anticipatory
bail.
4. On the other hand, learned APP Mr. Sharma for the
respondent – State of Gujarat as well as learned
advocate, Mr. Patel for the original complainant
have vehemently objected the present application
and contended that prima facie involvement of the
applicant is found out. They have referred to
entire sequence of incidents of events narrated by
the complainant in a very graphical manner and
submitted that specific role is attributed to the
applicant herein. They submitted that it is the
specific case of the complainant that all three
accused have cheated the complainant and by
showing one power of attorney, it was stated that
the original land owner had executed said power of
attorney in favour of the present applicant and if
the complainant would pay Rs.51,00,000/-, in that
event, they would execute the registered sale deed
in his favour and accordingly relying upon them,
the complainant had paid Rs.51,00,000/- to them
but despite his best efforts, the registered sale
deed was not executed in his favour and thereby
they were delaying the process of execution of the
sale deed and when the complainant had gone to the
office of the accused, one of the accused had
issued cheque in favour of the complainant,
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however, the said cheque was dishonoured, which
resulted into initiation of proceeding under the
NI Act, wherein the accused, who had accused
cheque, have been convicted by the court
concerned. He submitted that out of total amount
of Rs.51,00,000/-, the applicant has received
Rs.11,00,000/- and Rs.20,00,000/- each is received
by other two accused. He further submitted that
even during the course of investigation, it is
revealed that the original land owner has not
executed any power of attorney, which the accused
are possessing and the said fact came to the
notice of the complainant when he had published
notice for execution of the sale deed, wherein the
original land owner had raised his objections and
subsequently, the said original land owner had
issued public notice in daily newspaper stating
that he had not executed any power of attorney in
favour of anybody including the applicant herein.
They have also submitted that there are ample
material gathered by the concerned IO, which
clearly goes on to show that the present applicant
in connivance with each other and with a sole
intent to deceive the complainant, hatched
conspiracy and executed the crime and the
applicant is having 7 antecedents reported against
him. It is, therefore, urged that as the
investigation is at crucial stage, the present
application may not be entertained as the
custodial interrogation of the applicant is
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required.
5. Having heard the learned advocates appearing for
the parties and perusing the investigation papers,
it is equally incumbent upon the Court to exercise
its discretion judiciously, cautiously and
strictly in compliance with the basic principles
laid down in a plethora of decisions of the
Hon’ble Apex Court on the point. It is well
settled that, among other circumstances, the
factors to be borne in mind while considering an
application for bail are (i) the nature and
gravity of the accusation; (ii) the antecedents of
the applicants including the fact as to whether he
has previously undergone imprisonment on
conviction by a Court in respect of any cognizable
offence; (iii) the possibility of the applicants
to flee from justice; and (iv) where the
accusation has been made with the object of
injuring or humiliating the applicants by having
him so arrested. Though at the stage of granting
bail an elaborate examination of evidence and
detailed reasons touching the merit of the case,
which may prejudice the accused, should be
avoided. I have considered the following aspects.
6. It is required to be noted that normal procedure
prescribed for curtailing the right to life &
liberty, is that the investigating officer can
arrest the accused even without warrant. No doubt
this Court has extraordinary power to protect an
innocent person. However, this power has to be
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exercised by the Courts with due circumspection.
It is required to be noted that the grant of
anticipatory bail at the stage of investigation
may frustrate the investigating agency in
interrogating the accused and in collecting the
useful information and also the materials which
might have been concealed.
7. There is no substantial difference between
Sections 438 and 439 Cr.P.C. so far as
appreciation of the case as to whether or not a
bail is to be granted, is concerned. However,
neither anticipatory bail nor regular bail can be
granted as a matter of rule. The anticipatory bail
being an extraordinary privilege should be granted
only in exceptional cases. The judicial discretion
conferred upon the court has to be properly
exercised after proper application of mind to
decide whether it is a fit case for grant of
anticipatory bail. Parameters for grant of
anticipatory bail in a serious offence are
required to be satisfied and further while
granting such relief, the court must record the
reasons therefore. Anticipatory bail can be
granted only in exceptional circumstances where
the court is prima facie of the view that the
applicant has falsely been enroped in the crime
and would not misuse his liberty. In this regard,
a useful reference can be made to the decisions of
the Hon’ble Supreme Court in case of D.K. Ganesh
Babu Vs. P.T. Manokaran & Ors., reported in (2007)
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4 SCC 434; in case of State of Maharashtra & Anr.
Vs. Mohd. Sajid Husain Mohd. S. Husain & Ors.,
reported in (2008) 1 SCC 213; and in case of Union
of India Vs. Padam Narain Aggarwal & Ors.,
reported in (2008) 13 SCC 305.
8. Having heard learned advocates appearing for the
parties and having considered the allegations
leveled in the FIR, it is found out that on the
strength of the forged power of attorney, the
accused have received Rs.15,00,000/- through RTGS
and Rs.36,00,000/- in cash in part totalling to
Rs.51,00,000/-, out of which, Rs.11,00,000/- came
into the share of the present applicant, whereas
Rs.20,00,000/- each came into the share of other
accused and despite efforts being made by the
complainant for execution of the registered sale
deed, one of the accused had issued cheque in
favour of the complainant, which was returned
unpaid when it was deposited, therefore, the
proceedings under the NI Act came to be instituted
by the complainant against the accused concerned,
wherein an order of conviction has been passed. It
is found out on record that so-called power of
attorney, which the accused were possessing, was
not executed by the original land owner and in
fact, by publishing notice in the daily newspaper,
he has disclosed that he has not executed power of
attorney to anyone including the applicant, which
itself suggests that power of attorney possessed
by the applicant is forged one. Further, there are
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antecedents reported against the applicant. I have
considered the affidavit filed by the concerned
Investigating Officer opposing the bail
application preferred by the accused before the
learned Judge concerned, which clearly goes on to
show that strong apprehension has been shown with
regard to tampering of the evidence and hampering
of the witnesses. I have also gone through the
findings given and conclusion arrived at by the
learned Judge while rejecting the bail
application.
9. The FIR in criminal case is a vital and valuable
piece of evidence though may not be substantive
piece of evidence. The object of insisting upon
prompt lodging of the FIR in respect of the
commission of an offence is to obtain early
information regarding the circumstances in which
the crime was committed, the names of actual
culprits and the part played by them as well as
the names of eye- witnesses present at the scene
of occurrence. If there is a delay in lodging the
FIR, it looses the advantage of spontaneity,
danger creeps in of the introduction of coloured
version, exaggerated account or concocted story as
a result of large number of consultations/
deliberations. Undoubtedly, the promptness in
lodging the FIR is an assurance regarding truth of
the informant’s version. A promptly lodged FIR
reflects the first hand account of what has
actually happened, and who was responsible for the
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offence in question.
10. It is well settled that an application preferred
for anticipatory bail is an exceptional remedy to
be granted in exception cases. The parameters and
considerations governing the grant of anticipatory
bail have been explained by the Hon’ble Supreme
Court in number of cases. At this stage, I would
like to rely upon the law laid down by the Hon’ble
Supreme Court in the case of (i) State Rep. by the
CBI V/s Anil Sharma reported in 1997 (7) SCC 187,
(ii) Adri Dharan Das V/s State of W.B. reported in
2005 (4) SCC 303 (iii) P. Chidambaram V/s
Directorate of Enforcement reported in AIR 2019 SC
4198, wherein the Hon’ble Supreme Court has held
held as follows:
“The legislative intent behind the
introduction of Section 438 CrPC is to
safeguard the individual’s personal liberty
and to protect him from the possibility of
being humiliated and from being subjected to
unnecessary police custody. However, the
court must also keep in view that a criminal
offence is not just an offence against an
individual rather the larger societal
interest is at stake. Therefore, a delicate
balance is required to be established between
the two rights – safeguarding the personal
liberty of an individual and the societal
interest.
Ordinarily, arrest is a part of
procedure of the investigation to secure notPage 9 of 18
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only the presence of the accused but several
other purposes. There may be circumstances in
which the accused may provide information
leading to discovery of material facts and
relevant information. Grant of anticipatory
bail may hamper the investigation. It may
frustrate the investigating agency in
interrogating the accused and in collecting
the useful information and also materials
which might have been concealed. Success in
such interrogation would elude if the accused
knows that he is protected by the order of
the court. Grant of anticipatory bail,
particularly in economic offences would
definitely hamper the effective
investigation. Pre-arrest bail is to strike a
balance between the individual’s right to
personal freedom and the right of the
investigating agency to interrogate the
accused as to the material so far collected
and to collect more information which may
lead to recovery of relevant information. In
this view, it cannot be said that refusal to
grant anticipatory bail would amount to
denial of the rights conferred upon the
appellant/applicant under Article 21 of the
Constitution of India.
Consequently, power under Section 438
CrPC being an extraordinary remedy, has to be
exercised sparingly; more so, in cases of
economic offences. Economic offences stand as
a different class as they affect the economicPage 10 of 18
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fabric of the society. The privilege of the
pre-arrest bail should be granted only in
exceptional cases. The judicial discretion
conferred upon the court has to be properly
exercised after application of mind as to the
nature and gravity of the accusation;
possibility of the applicant fleeing 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. Section 438 CrPC
is to be invoked only in exceptional cases
where the case alleged is frivolous or
groundless. Anticipatory bail is 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”.
Having regard to nature of allegations
and stage of investigations, held
investigating agency must be given sufficient
freedom in process of investigation.
Appellant not entitled to anticipatory bail
as the same would hamper the investigation”.
11. 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 Paragraph
No.21, observed as under:-
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“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 investigation. The
court’s discretion in weighing these
interests in the facts and circumstances of
each individual case becomes crucial to
ensure a just outcome.”
12. In State of M.P. & Anr. Vs. Ram Kishna Balothia &
Anr., reported in AIR 1995 SC 1198, the Hon’ble
Supreme Court has considered the nature of the
right of anticipatory bail and observed as under:
“We find it difficult to accept the
contention that Section 438 of the Code of
Criminal Procedure is an integral part of
Article 21. In the first place, there was no
provision similar to Section 438 in the old
Criminal Procedure Code….. Also
anticipatory bail cannot be granted as a
matter of right. It is essentially aPage 12 of 18
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statutory right conferred long after the
coming into force of the Constitution. It
cannot be considered as an essential
ingredient of Article 21 of the Constitution.
And its non-application to a certain special
category of offences cannot be considered as
violative of Article 21.”
13. At this stage, it is required to be noted that as
this application has been preferred under the
provisions of Section 482 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 for grant of anticipatory
bail, I court would like to refer the decision of
the Hon’ble Supreme Court in the case of Siddharam
Satlingappa Mhetre Vs. State of Maharashtra &
Ors.,, reported in (2011) 1 SCC 694, more
particularly Paragraph Nos.14 & 112, which read as
under :-
“14. It is clear from the Statement of Objects and
Reasons that the purpose of incorporating
Section 438 in the Cr.P.C. was to recognize
the importance of personal liberty and
freedom in a free and democratic country.
When we carefully analyze this section, the
wisdom of the legislature becomes quite
evident and clear that the legislature was
keen to ensure respect for the personal
liberty and also pressed in service the age-
old principle that an individual is presumed
to be innocent till he is found guilty by the
court.
112. The following factors and parameters can be
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taken into consideration while dealing with
the anticipatory bail: The nature and gravity
of the accusation and the exact role of the
accused must be properly comprehended before
arrest is made; the antecedents of the
applicant including the fact as to whether
the accused has previously undergone
imprisonment on conviction by a Court in
respect of any cognizable offence; The
possibility of the applicant to flee from
justice; The possibility of the accused’s
likelihood to repeat similar or the other
offences. Whereas the accusation have been
made only with the object to injuring or
humiliating the applicant by arresting him or
her. Impact of grant of anticipatory bail
particularly in cases of large magnitude
affecting a very large number of people. The
courts must evaluate the entire available
material against the accused very carefully.
The court must also clearly comprehend the
exact role of the accused in the case.”
14. The Hon’ble Supreme Court in the case of Sumitha
Pradeep Vs. Arun Kumar C.K. & Anr., reported in
2022 SCC OnLine SC 1529 held that merely because
custodial interrogation was not required by itself
could not be a ground to grant anticipatory bail.
The first and the foremost thing the Court hearing
the anticipatory bail application is to consider
is the prima facie case against the accused. The
relevant extract of the judgment is reproduced
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hereinbelow:-
“It may be true, as pointed out by learned
counsel appearing for Respondent No.1, that
charge-sheet has already been filed. It will
be unfair to presume on our part that the
Investigating Officer does not require
Respondent No.1 for custodial interrogation
for the purpose of further investigation. Be
that as it may, even assuming it a case where
Respondent No.1 is not required for custodial
interrogation, we are satisfied that the High
Court ought not to have granted discretionary
relief of anticipatory bail. We are dealing
with a matter wherein the original
complainant (appellant herein) has come
before this Court praying that the
anticipatory bail granted by the High Court
to the accused should be cancelled. To put it
in other words, the complainant says that the
High Court wrongly exercised its discretion
while granting anticipatory bail to the
accused in a very serious crime like POCSO
and, therefore, the order passed by the High
Court granting anticipatory bail to the
accused should be quashed and set aside. In
many anticipatory bail matters, we have
noticed one common argument being canvassed
that no custodial interrogation is required
and, therefore, anticipatory bail may be
granted. There appears to be a serious
misconception of law that if no case for
custodial interrogation is made out by thePage 15 of 18
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prosecution, then that alone would be a good
ground to grant anticipatory bail. Custodial
interrogation can be one of the relevant
aspects to be considered along with other
grounds while deciding an application seeking
anticipatory bail. There may be many cases in
which the custodial interrogation of the
accused may not be required, but that does
not mean that the prima facie case against
the accused should be ignored or overlooked
and he should be granted anticipatory bail.
The first and foremost thing that the court
hearing an anticipatory bail application
should consider is the prima facie case put
up against the accused. Thereafter, the
nature of the offence should be looked into
along with the severity of the punishment.
Custodial interrogation can be one of the
grounds to decline custodial interrogation.
However, even if custodial interrogation is
not required or necessitated, by itself,
cannot be a ground to grant anticipatory
bail.”
15. Thus while taking into consideration the ratio
laid down by the Hon’ble Supreme Court in the case
of Siddharam Satlingappa Mhetre (supra) as also
ratio laid down in other decisions as stated
above, I have gone through the contents of the
FIR, which is placed on record and also considered
the affidavit of the investigating officer filed
before the learned Judge concerned opposing the
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bail application preferred by the applicants. Upon
going through the contents of the FIR, it appears
that prima facie case is made out against the
applicants and material collected so far suggests
the involvement of the applicants in the
commission of crime.
16. It is required to be noted at this stage that the
Hon’ble Supreme Court in catena of judicial
pronouncements have observed that a court may
reject an anticipatory bail application when
custodial interrogation is deemed necessary for a
thorough investigation, even if the applicant
argues that such interrogation isn’t required.
Further, while custodial interrogation can be a
factor in denying anticipatory bail, it is not the
sole determinant, and courts will also consider
other factors related to the severity of the
offense and the need for a comprehensive
investigation.
17. In the above facts and circumstances and
considering the observations on the legal aspect
of the matter, as applicant is actively involved
in the offence, I have absolutely no doubt that if
applicant is equipped with such an order of
anticipatory bail before he is interrogated by the
Police, in that event, it would greatly harm the
investigation and would impede the prospects of
unearthing the serious offence and applicant may
again indulge in such type of criminal activities.
Therefore, I do not find any exceptional ground to
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exercise its discretionary jurisdiction under
Section 482 of the BNSS to grant anticipatory
bail. More so, investigation is still going on in
the present case. It is settled proposition of law
that power exercisable under Section 482 BNSS, is
somewhat discretionary in character and it is to
be exercised with caution in exceptional cases.
18. Hence, the present application seeking for
anticipatory bail is hereby rejected.
19. Needless to say that observations and findings
made hereinabove are limited to the decision of
these pre-arrest bail applications, and shall not
influence any other proceedings arise from
impugned FIR.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
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