'Soft Target': Gujarat High Court Grants Anticipatory Bail To Ex-ASG IH Syed In Extortion Case, Says Allegations Apparently Designed To Humiliate Him

Briefly, the facts of the case are that the first informant, Ahmedabad-based businessman Viral Shah was called by one of the accused for attending a meeting at former Gujarat CM Shankersinh Vaghela's house at Gandhinagar for signing a business dispute-related settlement agreement. When he refused to sign it, it is alleged that he was threatened by the accused, former ASG at the Gujarat High Court IH Syed. He was allegedly told that he would be fixed in a false rape case if he does not sign the agreement. Further, it was alleged that the accused assaulted him and then managed to escape.

The applicant contended that the FIR made very general and vague allegations and no specific allegations for having threatened, assaulted or attempted to extort from the first informant were levelled. All the offences were triable by Magistrate, i.e., not grave or serious. Reliance was placed upon the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors.

Per contra, the Public Prosecutor (PP) submitted that the conduct of the applicant reflected his non-cooperation with the investigation. For instance, as the present FIR had been lodged, on the very next day, the applicant had approached the High Court by filing an application for quashing of the FIR. The applicant had thereafter not cooperated with the investigation.

The PP also bought the attention of the court to an earlier FIR where the first informant was released on bail. He stated that since the dispute alleged in the first FIR was for a much larger amount and settlement arrived at was for a smaller amount, therefore, there would be other documents apart from the document in question which were alleged to have been prepared by the applicant, for non-signing of which, the first informant was assaulted.

Finally, the PP contended that the applicant trying to influence the investigation and/or the witnesses by having the former Chief Minister of Gujarat write a letter to the present Chief Minister of Gujarat, the District Superintendent of Police and the Police Inspector.

The court held that the ambit of the FIR in which the present applicant was an accused was narrow. It held that the attempt by the PP, in order to justify custodial interrogation of the present applicant, to read the allegations as levelled in the earlier FIR with the facts of the present FIR cannot be countenanced. It opined that–

"The earlier FIR in question was between private individuals and whereas whatever may be the extent of amount alleged to have been defrauded, it was in the considered opinion of this Court, the discretion of the individuals concerned to decide as to the manner and method in which the dispute was to be settled…In the considered opinion of this Court, for the purpose of considering the present application for grant or refusal of anticipatory bail, the gravity of the offence as alleged in the present FIR are to be taken into consideration…and private disputes between the parties, which may not have any connection with the present applicant, are not required to be looked into by this Court at this stage."

While the court agreed with the PP that an FIR was not an encyclopaedia of facts, it held that the basic allegations against the accused in the FIR would have a bearing to decide the gravity of the offence and the exact role played by the applicant. As such, the court found that there were no specific allegations levelled against the applicant.

As far as the question of not cooperating is concerned, the court found that this was not a case of applicant absconding, rather, upon the FIR being filed, the applicant approached the Court under Section 482 of Cr.P.C. Simply availing legal remedies did not establish that he was not cooperating with the investigation.

Insofar as the allegations of influencing the investigation were considered, the court held that the former Chief Minister being the witness of the incident, narrating his version of the incident, should not be considered as something which is considered influencing the investigation. The meeting in question had taken place at the residence of the former Chief Minister and he was a witness to the entire incident and in such capacity, he could submit his version of the incident.

The court took into consideration the case of P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24, submitted by the PP, which states that the power under Section 438 of Cr.P.C. is an extraordinary power and the same has to be exercised sparingly and only in exceptional cases. However, the court found that this case was overturned by the Supreme Court in Sushil Aggarwal and Ors. v. State (NCT of Delhi) and Anr., (2020) 5 SCC 1 where it was found that while the power of granting anticipatory bail is not ordinary, its use is not confined to exceptional cases.

Therefore, it was found that the accused is not obliged to make out a special case for grant of anticipatory bail.

Finally, coming to the principal question of grant or refusal of anticipatory bail, the Court relied upon the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors., (2011)1 SCC 694 where the Supreme Court has laid down certain parameters which are to be taken into consideration while dealing with an application for anticipatory bail. These parameters included– gravity of accusation, antecedents against the applicant, possibility of the applicant to flee from justice, genuineness of prosecution etc.

Regarding nature and gravity of accusation, it was found that the FIR did not make out any specific allegation against the present applicant. As per the court, it appeared that the exact role of the applicant was of having prepared a document which incidentally was seized by the I.O. and later remaining present in the meeting and at the most of threatening the first informant. Further, there were no antecedents of being named in any Criminal Complaint/FIR against the present applicant. It was found that regarding the possibility to flee from justice, there was no likelihood of the applicant attempting to flee from justice owing to his position as a Senior Advocate at the Gujarat High Court.

The court held that the applicant's presence at the meeting could be justified by the fact that he was acting on behalf of his client and had prepared a document as instructed by his client.

The court also held that no material as produced by the PP would justify custodial interrogation of the present applicant. This was opined keeping in view that–

"…the allegations…would cause humiliation, harassment and unjustified detention of the present applicant, who happens to be a designated Sr. Advocate of this Court, in the considered opinion of this Court, the scales of justice would tilt in favour of the present applicant being a soft target, and whereas by filing the FIR immense pressure could be brought upon the other accused to bend to the will of the first informant."

As far as the aspect regarding genuineness of the prosecution was concerned, the court found that the first informant had gone to the place of incident after approximately 7 hours of receiving the telephonic call where he was invited to attend the meeting. He was clearly informed about the purpose of the meeting. He made it seem that he was coerced into attending the meeting where he was forced to sign the agreement, whereas in reality, he attended the meeting voluntarily with full knowledge about the purpose of the meeting. This, as per the court, reflects upon the frivolity of the prosecution.

Thus, the court granted anticipatory bail to the applicant and directed the Investigating Officer to release him in case of his arrest.

In spite of this order, it was kept open for the Investigating Agency to file an application for police remand of the applicant to the competent Magistrate, if he thinks it just and proper and Magistrate would decide it on merits.

Case Title: IQBAL HASANALI SYED Versus STATE OF GUJARAT 

Citation: 2022 LiveLaw (Guj) 208