Madhya Pradesh High Court
Rahul Jain vs The State Of Madhya Pradesh on 16 July, 2026
NEUTRAL CITATION NO. 2026:MPHC-GWL:21068
1 MCRC-30127-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJESH KUMAR GUPTA
ON THE 16th OF JULY, 2026
MISC. CRIMINAL CASE No. 30732 of 2026
DR REKHA JIAN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sankalp Kochar with Shri Sankalp Sharma and Shri Greeshm Jain -
Advocates for the applicant.
Shri M.P.S. Raghuvanshi, learned Senior Advocate with Shri Sameer Kumar
Shrivastava and Shri Vibhor Kumar Sahu- Advocates for the complainant.
Shri Atul Kumar Sharma - Public Prosecutor.
WITH
MISC. CRIMINAL CASE No. 29281 of 2026
SAMEER JAIN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sankalp Kochar with Shri Sankalp Sharma, Shri Greeshm Jain and Shri
Sanjay Gupta - Advocates for the applicant.
Shri M.P.S.Raghuvanshi, learned Senior Advocate with Shri Sameer Kumar
Shrivastava and Shri Vibhor Kumar Sahu- Advocates for the complainant.
Shri Atul Kumar Sharma- PP for the State.
MISC. CRIMINAL CASE No. 30127 of 2026
RAHUL JAIN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sankalp Kochar with Shri Sankalp Sharma, Shri Greeshm Jain and Shri
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Sanjay Gupta- Advocates for the applicant.
Shri M.P. S. Raghuvanshi, learned Senior Advocate with Shri Sameer Kumar Shrivastava, Shri Vibho
Vijay Kumar Jha - Advocate for the complainant.
Shri Atul Kumar Sharma- PP for the State.
....................................................................................................................................................................
HEARD ON: 07.07.2026
DELIVERED ON : 16.07.2026
ORDER
Since all the above-mentioned applications under Section 482 of the
BNSS arise out of the same Crime No.346/2026 registered at Police Station
Kotwali, District Ashoknagar (M.P.), involve identical questions of fact and
law, and are founded upon the same prosecution case, they are being heard
analogously and are being decided by this common order.
2. The applicants apprehend their arrest in connection with Crime
No.346/2026 registered for offences punishable under Sections 299, 352,
353(2), 61 and 302 of the BNS and Sections 66B and 66C of the Information
Technology Act, 2000.
3. According to the prosecution, on 02.06.2026 one objectionable
message allegedly relating to Jain saint Muni Shri Sudhasagar Ji Maharaj
was posted in a WhatsApp group known as “Jagruk Jain Samaj Bharat”
through mobile number 7354297110. The contents of the message were
derogatory and had the tendency to outrage the religious feelings of
followers of the said Jain saint and thereby disturb communal harmony and
public peace. On the complaint of one Rakesh Kansal, Crime No.346/2026
came to be registered at Police Station Kotwali, District Ashoknagar.
4. Initially, the FIR was registered against an unknown person.
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Subsequently, during investigation, the names of the present applicants came
to be reflected on the basis of technical investigation and other material
allegedly collected by the investigating agency. The prosecution alleges that
cyber analysis coupled with statements of witnesses and other electronic
material disclose the involvement of the applicants in publication and
circulation of the alleged message. Accordingly, offence was registered
against the present applicants.
5. Learned counsel for the the applicant- Dr. Rekha Jain submits that
the applicant is innocent and has been falsely implicated in this case. The
entire prosecution case, even if accepted at its face value, fails to disclose any
prima facie material warranting custodial interrogation of the applicant. It is
submitted that the applicant is a former Deputy Superintendent of Police who
voluntarily retired from service in the year 2014 after rendering long years of
distinguished service. After retirement, she has devoted herself to religious
and charitable activities as a Brahmacharini and disciple of revered Jain
Acharya Shri Vidyasagar Ji Maharaj. It is contended that throughout her
career she has maintained an unblemished record and has never been
implicated in any criminal case. Learned counsel submits that the present
FIR cannot be appreciated in isolation as according to him, the impugned
prosecution is merely one episode in a prolonged series of disputes
commencing from the year 2022 involving anonymous defamatory letters
circulated against Jain saints and subsequent litigation between different
groups within the Jain community. It is argued that the applicant herself
actively assisted the police authorities during investigation of Crime
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No.394/2022 by facilitating installation of CCTV cameras near Katra Post
Office, Sagar. The CCTV footage allegedly led to identification of certain
persons who were subsequently prosecuted. According to the counsel for the
applicant, her participation in that investigation invited hostility from certain
persons who thereafter began targeting her through complaints, defamatory
campaigns and criminal proceedings. Learned counsel further submits that
thereafter several incidents occurred including alleged defamatory speeches,
circulation of objectionable social media content and institution of various
proceedings by and against different members of the community. Reference
has been made to proceedings before the National Commission for Women,
Writ Petition No.24749/2024, Crime No.1151/2024 and various
representations submitted before police authorities. It is submitted that the
present prosecution is only a continuation of the previous hostility and has
been initiated with an oblique motive to falsely implicate the applicant.
Learned counsel further submits that the applicant was not named in the FIR.
No overt act has been attributed to her in the FIR. It is contended that the FIR
nowhere alleges that the applicant authored the message, posted the message,
forwarded the message, administered the WhatsApp group or transmitted the
impugned communication. The entire prosecution, according to learned
counsel, rests solely upon the alleged connection of one mobile number with
the applicant. It is further argued by, learned counsel that the disputed mobile
n u m b e r 7354297110 admittedly remained with the applicant only
temporarily during the period when her own mobile handset had allegedly
become defective. The handset and SIM, according to the defence, belonged
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to co-applicant Sameer Jain, who runs a mobile repair establishment. It is
argued that the said handset was returned to Sameer Jain in February 2026,
whereas the alleged WhatsApp message was posted only on 02.06.2026.
Thus, according to the applicant, even assuming the prosecution story to be
correct, the electronic device was no longer in her possession or control on
the date of occurrence. Learned counsel has invited attention to the
anticipatory bail application as well as representations allegedly submitted
by Sameer Jain before various authorities wherein he is stated to have
consistently asserted that the mobile handset and SIM card remained with
him at the relevant point of time and that he was prepared to produce the
handset for forensic examination. It is further submitted that despite such
material, the investigating agency proceeded on a predetermined assumption
to implicate the present applicant. It is argued that contemporaneous
complaints submitted by Rajesh Jain and Dr. Sanjeev Kumar Jain indicate
that pressure was allegedly exerted upon witnesses during investigation to
make statements against the applicant. The learned counsel has also referred
to the representation addressed by the applicant to the Principal Secretary,
Home Department, immediately after registration of the FIR alleging bias in
investigation and requesting an independent enquiry. According to learned
counsel, these circumstances lend support to the applicant’s apprehension
that the investigation has not proceeded in an objective manner. It is further
contended that the case rests substantially upon electronic evidence. No
forensic report, hash-value analysis, device extraction report, call-detail
correlation or any expert opinion has yet been produced connecting the
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applicant with the alleged publication. It is argued that in absence of such
scientific material, mere assumptions regarding prior use of a mobile number
cannot constitute sufficient ground for custodial interrogation. It is also
submitted that the offences alleged in the present case are punishable with
imprisonment extending to a maximum term of three years and are founded
predominantly upon documentary and electronic evidence. Therefore,
custodial interrogation, is not required.
6. Reliance has been placed upon the judgments of the Supreme Court
in Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 , Siddharam
Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 , Arnesh
Kumar v. State of Bihar (2014) 8 SCC 273 , Satender Kumar Antil v. Central
Bureau of Investigation (2022) 10 SCC 51 , Md. Asfak Alam v. State of
Jharkhand 2023 INSC 660 , Sushila Aggarwal v. State (NCT of Delhi) (2020)
5 SCC 1 and the decisions of this Court in Zarina Begum v. State of Madhya
Pradesh 2021 SCC Online MP 961 and Deepankar Vishwas v. State of
Madhya Pradesh, M.Cr.C.25252/2022 , to contend that arrest should not be
resorted to merely because it is lawful to do so and that custodial
interrogation must be justified on objective grounds.
7. It is also submitted that the applicant is a permanent resident of
District Sagar, has deep roots in society, possesses no criminal antecedents,
undertakes to cooperate with the investigation in every manner and is willing
to abide by any condition that may be imposed by this Court.
8. Learned counsel appearing for applicant Sameer Jain submits that
the applicant has been falsely implicated and that the entire prosecution case,
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even if accepted at its face value, does not disclose any circumstance
necessitating his custodial interrogation. It is submitted that the FIR itself
was initially registered against an unknown person and the name of the
present applicant surfaced only during investigation. According to the
learned counsel, the mere fact that the disputed mobile number is alleged to
have been used by the applicant cannot, by itself, constitute sufficient
material for denying the anticipatory bail to the applicant. Learned counsel
submits that the applicant belongs to the Jain community and has deep
respect for Jain saints, religious institutions and traditions. It is argued that
the alleged WhatsApp post, if read in its entirety, neither discloses any
deliberate or malicious intention to outrage the religious feelings of any class
of persons nor does it reveal any intention to promote hatred or disharmony
between different religious communities. It is further argued by learned
counsel that the alleged message was posted in the backdrop of certain
disputes which had earlier arisen within sections of the Jain community itself
regarding religious affairs at Sagar. According to the applicant, whatever was
expressed was an emotional reaction to those events and not a calculated
attempt to insult any religion or to disturb public tranquillity. It is submitted
that the essential ingredient of deliberate and malicious intention, which
forms the foundation of the alleged offence under Section 299 of the BNS, is
conspicuously absent from the prosecution material presently collected.
Learned counsel further submits that immediately after registration of the
FIR, the applicant never attempted to evade the process of law. Rather, he
submitted detailed representations before various senior police authorities
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expressing his willingness to cooperate with the investigation. Attention has
been invited to the representations dated 08.06.2026, wherein the applicant is
stated to have categorically expressed his readiness to appear before the
Investigating Officer and to hand over his mobile handset bearing IMEI
No.868988067359858 for forensic examination. According to learned
counsel, the conduct of voluntarily offering the mobile handset itself
demolishes the allegation that the applicant intended either to destroy
electronic evidence or to obstruct investigation. It is further argued that the
applicant has consistently maintained before different authorities that he
should not be compelled to falsely implicate any innocent person during
investigation. Learned counsel submits that similar grievances regarding the
manner in which investigation was being conducted were independently
raised by Rajesh Jain and Dr. Sanjeev Kumar Jain before higher authorities,
thereby lending support to the applicant’s apprehension that the investigation
was not proceeding in a wholly impartial manner.
9. It is also contended that the applicant had also invoked the
jurisdiction of the competent Court by filing an application under Section
175(3) of the BNSS seeking a fair and impartial investigation. According to
the applicant, this conduct clearly indicates that he was not attempting to
avoid investigation but was, on the contrary, requesting that the investigation
proceed strictly in accordance with law. Learned counsel further submits that
the prosecution case rests substantially upon electronic evidence, all of
which remains available for scientific examination. The mobile handset, SIM
card, WhatsApp records, server logs, metadata, call detail records and
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forensic examination can all be carried out without taking the applicant into
custody. It is argued that no recovery is required from the applicant and no
purpose would be served by his custodial arrest.
10. Reliance has been placed upon the decisions of the Hon’ble
Supreme Court in Arnesh Kumar v. State of Bihar (Supra), Satender Kumar
Antil v. CBI (Supra), Md. Asfak Alam v. State of Jharkhand (Supra), Sushila
Aggarwal v. State (NCT of Delhi) (Supra) and Siddharam Satlingappa
Mhetre v. State of Maharashtra (Supra) to contend that arrest should not be
resorted to merely because the investigating agency possesses the power to
arrest and that the Court is required to examine whether custodial
interrogation is genuinely necessary. The applicant is a permanent resident of
District Sagar, has no criminal antecedents, has roots in society and
undertakes to cooperate with the investigation in every respect.
11. Learned counsel appearing for applicant Rahul Jain that the
applicant is innocent and has been falsely implicated in this case He further
submits that the prosecution has failed to assign any specific role whatsoever
to the present applicant. It is submitted that the FIR was admittedly
registered against an unknown person and that the present applicant was not
named therein. No allegation has been made in the FIR that the applicant
authored the impugned message, uploaded the same, forwarded it,
administered the WhatsApp group or otherwise participated in its
publication. According to the learned counsel, the applicant has been
implicated during investigation merely on the basis of a vague assertion that
his involvement surfaced during cyber investigation, without disclosing the
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precise nature of such involvement. Learned counsel submits that even the
order of the trial court records that the actual posting of the disputed
WhatsApp message is attributed to co-applicant Sameer Jain. Therefore,
according to him, there is no independent allegation against the present
applicant except a generalized reference to his alleged involvement. It is
argued that such omnibus allegations, unsupported by any overt act, are
insufficient to justify custodial interrogation. It is further submitted that the
prosecution has not produced any material indicating that the disputed
mobile number was ever registered in the name of the present applicant or
remained under his control at the relevant point of time. Attention has also
been invited to the contemporaneous representations submitted by Sameer
Jain and the complaints submitted by Rajesh Jain and Dr. Sanjeev Kumar
Jain alleging pressure during investigation. Learned counsel submits that
these documents constitute relevant circumstances while considering whether
arrest is genuinely required. Learned counsel submits that the entire
prosecution is founded upon electronic records and cyber analysis. Such
evidence is already capable of preservation through scientific means and
therefore the applicant’s custodial interrogation would serve no useful
purpose. It is argued that the alleged offences are punishable with
imprisonment extending to less than seven years and, therefore, the
principles laid down by the Hon’ble Supreme Court in Arnesh Kumar v.
State of Bihar (Supra) squarely govern the present case.
12. It is also submitted that the applicant is a permanent resident of
District Sagar, has no criminal antecedents, is ready to cooperate with
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investigation and undertakes to abide by every condition which may be
imposed by this Court.
13. Per contra, learned PP opposed the applications and submitted that
the allegations relate to circulation of objectionable content concerning a
revered Jain saint, resulting in serious resentment amongst members of the
Jain community. It is submitted that the investigation conducted so far
reveals prima facie involvement of the applicants through electronic
evidence and technical analysis. According to the learned Government
Advocate, investigation is still at a nascent stage and custodial interrogation
may be necessary to ascertain the complete chain of events, identify the
source of the electronic communication, recover digital evidence, determine
the role of each participant and identify other persons, if any, involved in the
commission of the alleged offence. It is submitted that electronic offences
frequently involve deletion of data, multiple devices, cloud storage and
encrypted communication and therefore the investigating agency should not
be deprived of its statutory power to conduct an effective investigation.
Learned Government Advocate further submits that the allegations involve
publication of material allegedly capable of disturbing public order and
hurting religious sentiments. Such offences, according to the prosecution,
have wider societal ramifications and therefore require thorough
investigation. It is argued that grant of anticipatory bail at this stage may
adversely affect collection of evidence and may embolden the applicants to
influence witnesses acquainted with the facts of the case. It is therefore
prayed that all the applications deserve dismissal.
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14. Learned Senior Advocate Shri Raghuvanshi, Shri Sharma and Shri
Sahu appearing for the complainant adopted the submissions advanced on
behalf of the State. It is further contended that the material collected during
investigation prima facie indicates active involvement of the applicants in
the events leading to publication and circulation of the disputed WhatsApp
message. According to the complainant, the electronic evidence collected by
the investigating agency cannot be minutely scrutinized at the stage of
anticipatory bail and the Court should refrain from entering into disputed
questions of fact. It is submitted that offences affecting religious harmony
occupy a distinct position and the Court should exercise caution before
granting the extraordinary relief of anticipatory bail. The complainant
accordingly prayed that the applications be rejected.
15. Heard counsel for the rival parties and perused the case diary and
the entire material available on record with due care.
16. After hearing all the rival submissions, before this Court, the
following questions arise for consideration:
(i) Whether the applicants have succeeded in making out a case
for grant of anticipatory bail under Section 482 of the BNSS?
(ii) Whether custodial interrogation of the applicants appears
necessary for a fair and effective investigation?
(iii) Whether the nature of allegations, the material collected
during investigation and the statutory framework governing
offences punishable with imprisonment extending up to three
years justify denial of the discretionary relief sought?
(iv) To what extent do the principles laid down by the Hon’ble
Supreme Court in Gurbaksh Singh Sibbia (Supra), Siddharam
Satlingappa Mhetre (Supra), Arnesh Kumar (Supra), Sushila
Aggarwal, Satender Kumar Antil (Supra) and Md. Asfak Alam
(Supra) govern the present controversy?
17. At the outset, it deserves to be noticed that the Court, while
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considering an application seeking anticipatory bail, is not expected to
undertake a meticulous appreciation of evidence or to record findings on
disputed questions of fact which are required to be adjudicated during trial.
The Court is required to examine whether, on the basis of the material
presently available, custodial interrogation appears necessary, whether the
accusations disclose a prima facie case warranting arrest and whether the
discretionary relief of anticipatory bail deserves to be exercised having
regard to the settled principles governing personal liberty under Article 21 of
the Constitution.
18. The extraordinary remedy of anticipatory bail is intended to protect
an individual against unnecessary arrest while simultaneously ensuring that a
fair investigation is not impeded. The power is discretionary and is to be
exercised on the facts of each case after balancing the competing interests of
individual liberty and the societal interest in a fair criminal investigation.
19. The Constitution Bench of the Hon’ble Supreme Court in
Gurbaksh Singh Sibbia v. State of Punjab , (1980) 2 SCC 565 , while
interpreting the scope of anticipatory bail, authoritatively held that the
provision confers a valuable discretionary power intended to protect personal
liberty and that no inflexible formula can be laid down for its exercise. The
Court observed that the discretion must be exercised judiciously having
regard to the facts of each case and that the power cannot be restricted by
judicially engrafted limitations not found in the statute.
20. The Constitution Bench further emphasized that anticipatory bail is
an important facet of the constitutional guarantee of personal liberty and that
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arrest should not be employed as a punitive measure merely because the
investigating agency possesses the legal authority to arrest.
21. The aforesaid principles were subsequently elaborated in
Siddharam Satlingappa Mhetre v. State of Maharashtra , (2011) 1 SCC 694 ,
wherein the Hon’ble Supreme Court reiterated that personal liberty occupies a
pre-eminent position in the constitutional framework and that arrest should
ordinarily be the last option available to the investigating agency.
22. The Supreme Court held that while considering an application for
anticipatory bail, the Court should, inter alia, consider:
(i) the nature and gravity of accusation;
(ii) the role attributed to the accused;
(iii) the necessity of custodial interrogation;
(iv) the possibility of the applicant fleeing from justice;
(v) the likelihood of influencing witnesses or tampering
with evidence; and
(vi) whether arrest is genuinely required for effective
investigation.
23. The Constitution Bench in Sushila Aggarwal v. State (NCT of
Delhi), (2020) 5 SCC 1 , reaffirmed that anticipatory bail is a device to secure
individual liberty and observed that the Courts should strike a balance
between the right to personal freedom and the legitimate interests of
investigation. The Court further held that anticipatory bail should not
ordinarily be circumscribed by arbitrary restrictions and that the conditions
imposed must bear a rational nexus with the purpose sought to be achieved.
24. In Joginder Kumar v. State of U.P. , (1994) 4 SCC 260 , the Hon’ble
Supreme Court emphasized that the existence of power to arrest is one thing
and the justification for its exercise is another. The Court observed that no
arrest can be made merely because it is lawful for the police officer to do so.
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The investigating officer must be able to justify the necessity of arrest.
25. The aforesaid principle assumes considerable significance in the
present case, where the prosecution principally relies upon electronic records
and documentary material. The Court is therefore required to examine
whether the material presently available discloses any compelling necessity
for custodial interrogation of the applicants.
26. The constitutional safeguards against arbitrary arrest were further
emphasized in D.K. Basu v. State of West Bengal , (1997) 1 SCC 416 ,
wherein the Supreme Court reiterated that personal liberty under Article 21
cannot be curtailed except in accordance with a fair, just and reasonable
procedure established by law.
27. The law relating to arrest in offences punishable up to seven years
now stands authoritatively settled by the Hon’ble Supreme Court in Arnesh
Kumar v. State of Bihar, (2014) 8 SCC 273 .
28. The Supreme Court held that arrest is not automatic merely
because an offence is cognizable. Before effecting arrest, the investigating
officer must satisfy himself that such arrest is necessary having regard to the
parameters specified by
29. The Supreme Court further directed that where arrest is not
necessary, notice requiring appearance should ordinarily be issued and
unnecessary arrests should be avoided. The rationale underlying the decision
is that arrest should never become a routine investigative tool and that
deprivation of liberty must satisfy the constitutional requirement of necessity.
Although the judgement laid down in the case of Arnesh Kumar (supra)
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arose under Section 498-A IPC, the principles laid down therein have
repeatedly been held to be of general application in offences punishable with
imprisonment extending up to seven years.
30. The principles laid down in Arnesh Kumar (supra) were further
explained and expanded by the Hon’ble Supreme Court in Satender Kumar
Antil v. Central Bureau of Investigation, (2022) 10 SCC 51 .
31. The Supreme Court observed that the criminal justice system
cannot function on the assumption that arrest is the normal rule. Personal
liberty is the constitutional norm, whereas arrest and detention constitute
exceptions which must be justified by necessity. The Supreme Court
emphasized that where investigation can effectively proceed without
custodial interrogation, arrest should ordinarily be avoided and the accused
should be permitted to cooperate with the investigating agency. The Court
also reiterated that the object of arrest is to secure effective investigation and
not to inflict punishment before conviction.
32. It is now well settled that arrest is not an end in itself. The power to
arrest is conferred to facilitate a fair and effective investigation and not to
inflict punishment prior to conviction. Therefore, while considering an
application for anticipatory bail, one of the principal considerations is
whether the object sought to be achieved by arrest cannot otherwise be
accomplished through cooperation of the accused with the investigating
agency.
33. In Md. Asfak Alam v. State of Jharkhand & Another , (2023) 8
SCC 632, the Hon’ble Supreme Court reiterated that arrest is not intended to
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be a punitive measure and that the Courts must carefully examine whether
custodial interrogation is genuinely necessary. The Court observed that
deprivation of liberty has serious constitutional consequences and, therefore,
the investigating agency must justify the necessity of arrest on objective
considerations.
34. Similarly, in Aman Preet Singh v. CBI , (2022) 13 SCC 764 , the
Supreme Court held that where the accused has cooperated with the
investigation and custodial interrogation is not shown to be indispensable,
denial of liberty would not ordinarily be justified merely because the
investigating agency possesses the power to arrest.
35. In Sanjay Chandra v. CBI , (2012) 1 SCC 40 , while dealing with
economic offences, the Hon’ble Supreme Court emphasized that the object
of bail is to secure the presence of the accused during investigation and trial
and not to impose pre-trial punishment. The Court observed that detention
before conviction should not become a substitute for punishment.
36. The aforesaid principles acquire greater significance where the
prosecution case is founded substantially upon documentary or electronic
evidence. In such cases, the material evidence ordinarily remains capable of
scientific preservation and examination, and therefore the necessity of
custodial interrogation requires closer scrutiny.
37. The allegations in the present case arise out of an electronic
communication allegedly circulated through a WhatsApp group. The
prosecution itself asserts that the investigation is based upon cyber analysis,
mobile phone records, technical investigation, electronic devices and digital
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material. Thus, prima facie, the case is predominantly founded upon
electronic evidence. It is a matter of common knowledge that electronic
evidence such as mobile phones, SIM cards, call detail records, Internet
Protocol logs, server information, metadata, forensic extraction reports and
other digital records are ordinarily capable of scientific examination
independent of custodial detention of the accused. Where such electronic
devices have already been identified or can be secured in accordance with
law, the investigating agency must demonstrate, by reference to specific
facts, why custodial interrogation is indispensable. Mere assertion that
investigation is continuing cannot by itself constitute sufficient justification
for depriving a citizen of personal liberty. The Court is conscious that each
criminal case must necessarily depend upon its own facts and that no
straight-jacket formula can be evolved. Nevertheless, the constitutional
mandate flowing from Article 21 requires that arrest must bear a rational
nexus with the legitimate requirements of investigation.
38. The offences alleged against the applicants arise under Sections
299, 352, 353(2), 61 and 302 of the BNS together with Sections 66B and
66C of the Information Technology Act.
39. At the present stage, this Court is not expected to render any
conclusive finding regarding the applicability or otherwise of the said
provisions. However, for the limited purpose of deciding whether
anticipatory bail deserves to be granted, it becomes necessary to ascertain
whether the accusations, if accepted at their face value, prima facie disclose
circumstances requiring custodial arrest. The learned counsel for the
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applicants has repeatedly emphasized that the maximum punishment
prescribed for the principal offences invoked by the prosecution does not
exceed three years’ imprisonment. Without expressing any final opinion
upon the exact sentence that may ultimately become applicable depending
upon the proved facts and the precise statutory provisions attracted, it is
evident that the alleged offences do not fall within the category of offences
punishable with death or imprisonment for life. This aspect assumes
significance while considering the necessity of arrest in the light of the
principles laid down in Arnesh Kumar (supra) a n d Satender Kumar
Antil (supra).
40. The Hon’ble Supreme Court has consistently held that arrest cannot
be treated as the normal consequence of registration of a cognizable offence.
Rather, the investigating officer must satisfy himself that arrest is necessary
for one or more legally recognized purposes, namely- (i) to prevent
commission of further offence; (ii) to ensure proper investigation; (iii) to
prevent disappearance of evidence; (iv) to prevent inducement or
intimidation of witnesses; (v) to secure the presence of the accused during
investigation. Unless one or more of the aforesaid conditions are shown to
exist, deprivation of liberty would ordinarily offend the constitutional
protection guaranteed under Article 21.
41. Keeping the aforesaid legal principles in view, this Court now
proceeds to examine the material placed before it. The FIR, which forms the
foundation of the prosecution, admittedly came to be registered against an
unknown person. It is also not in dispute that the names of the present
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applicants surfaced subsequently during investigation. The allegations
against each applicant are not identical. The role attributed to applicant Dr.
Rekha Jain principally rests upon the allegation regarding her earlier use of
the disputed mobile number. The allegations against applicant Sameer Jain
are founded upon his alleged use of the mobile handset and the alleged
publication of the disputed post. The allegation against Rahul Jain appears to
be that his involvement surfaced during technical investigation. The
evidentiary value, admissibility and correctness of the material collected
during investigation are matters which shall necessarily be examined during
trial. At the present stage, the Court is concerned only with the question
whether custodial interrogation has been shown to be indispensable. The
prosecution has undoubtedly asserted that technical investigation is in
progress. However, at this stage, this Court does not find any specific
material placed before it indicating why the investigation cannot proceed if
the applicants are directed to cooperate with the Investigating Officer by
appearing as and when required, producing the relevant electronic devices,
disclosing passwords or complying with such lawful directions as may be
issued. The necessity of custodial interrogation must be distinguished from
the necessity of investigation. Investigation may undoubtedly continue. The
question, however, is whether such investigation necessarily requires
incarceration of the applicants. The Hon’ble Supreme Court has repeatedly
cautioned that these two concepts are not synonymous. Accordingly, while
the investigation must proceed unhindered, the Court is required to
independently examine whether arrest is constitutionally and legally justified
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on the facts presently available.
42. Hence, after consideration to the rival submissions advanced by
the rival parties, perused the case diary and the material available on record,
and examined the legal position governing the grant of anticipatory bail, this
Court is of the considered view that the present applications deserve to be
allowed.
43. At the outset, it requires to be observed that while considering an
application for anticipatory bail, this Court is not expected to undertake a
meticulous appreciation of evidence or record findings touching upon the
merits of the prosecution case. The Court is only required to examine
whether the accusations, viewed prima facie, disclose a necessity for
custodial interrogation and whether denial of liberty would be justified in the
facts of the case.
44. It is not in dispute that the FIR in the present case was initially
registered against an unknown person. The applicants were not named in the
FIR and their names surfaced only during the course of investigation. The
precise evidentiary value of the material collected by the investigating
agency is a matter to be examined during investigation and, if necessary, at
trial. At this stage, the Court is not expected to express any conclusive
opinion on the correctness of the rival versions.
45. So far as applicant Dr. Rekha Jain is concerned, the material
presently available indicates that the prosecution seeks to connect her with
the alleged offence principally on the basis of the disputed mobile number. It
is, however, the specific stand of the applicant that the said mobile number
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and handset had been returned several months prior to the alleged incident.
Whether that defence ultimately merits acceptance is a matter for
investigation and trial. Nevertheless, at this stage, the material presently
placed before the Court does not prima facie demonstrate that custodial
interrogation of the applicant is indispensable.
46. Insofar as applicants Sameer Jain and Rahul Jain are concerned,
the allegations are founded substantially upon electronic evidence, cyber
analysis and digital material. Such evidence is capable of being collected,
preserved and scientifically examined in accordance with law. The
prosecution has not pointed out any specific circumstance demonstrating that
such investigation cannot effectively proceed if the applicants cooperate with
the Investigating Officer.
47. Another circumstance which cannot be ignored is that the
prosecution case is predominantly founded upon electronic records.
Investigation in such cases ordinarily depends upon forensic examination of
devices, call detail records, metadata, server information and other digital
evidence. Collection of such evidence is essentially scientific in nature. No
specific material has been placed before this Court to indicate that custodial
interrogation is indispensable for securing such evidence or that the same
cannot be collected by directing the applicants to cooperate with the
investigation.
48. The learned Government Advocate has submitted that
investigation is still in progress and custodial interrogation is necessary.
However, except making a general submission, no concrete circumstance has
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been pointed out demonstrating how arrest of the applicants would materially
advance the investigation. Mere pendency of investigation cannot, by itself,
constitute a ground to deny the discretionary relief of anticipatory bail.
49. This Court is also conscious that the offences alleged are not
punishable with death or imprisonment for life. The principles governing
arrest in offences carrying comparatively lesser punishment have been
authoritatively laid down by the Hon’ble Supreme Court in Arnesh Kumar v.
State of Bihar, (2014) 8 SCC 273 , and reiterated in Satender Kumar Antil v.
CBI, (2022) 10 SCC 51 . The Hon’ble Supreme Court has consistently held
that arrest is not to be made in a routine manner and that the investigating
agency must satisfy itself that arrest is necessary for one or more legally
recognized purposes. The power to arrest cannot be exercised mechanically
merely because it exists.
50. The Constitution Bench decisions in Gurbaksh Singh Sibbia v.
State of Punjab, (1980) 2 SCC 565 , and Sushila Aggarwal v. State (NCT of
Delhi), (2020) 5 SCC 1 , further emphasize that anticipatory bail is a device
intended to protect personal liberty and that Courts are required to strike a
balance between the right of the investigating agency to conduct a fair
investigation and the fundamental right of the individual under Article 21 of
the Constitution.
51. This Court also finds that all the three applicants are permanent
residents, their identities are not in dispute, no material has been placed
before this Court indicating that they are likely to abscond, and it has been
consistently stated on their behalf that they are ready and willing to
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cooperate with the investigation, appear before the Investigating Officer as
and when required, and comply with every condition that may be imposed.
52. Without expressing any opinion on the merits of the allegations,
and keeping in view the nature of the accusations, the role attributed to each
applicant, the stage of investigation, the nature of the evidence relied upon
by the prosecution, the absence of any specific material demonstrating the
necessity of custodial interrogation, and the law laid down by the Hon’ble
Supreme Court in Gurbaksh Singh Sibbia (supra), Siddharam Satlingappa
Mhetre (supra), Arnesh Kumar (supra), Sushila Aggarwal (supra), Satender
Kumar Antil (supra), Md. Asfak Alam (supra), Joginder Kumar (supra), and
Aman Preet Singh (supra), this Court is of the considered opinion that the
applicants have made out a fit case for grant of anticipatory bail.
53. In view of facts and circumstances of the case, but without
expressing any opinion on merits of the case, these applications are allowed
and in the event of arrest, the applicants be released on bail on executing a
personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh
only) each with one surety each in the like amount to the satisfaction of the
Arresting Officer /Investigating Authority.
54. . The applicants shall further abide by other conditions enumerated
under Section 482 (2) of the B.N.S.S. and shall cooperate in the
investigation, otherwise this bail order shall automatically stand cancelled.
55. Certified copy as per rules.
(RAJESH KUMAR GUPTA )
JUDGE
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Vishal
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