In a significant order delivered on April 2, 2024, the LVI Additional City Civil & Sessions Judge, Bengaluru (CCH 57), Sri T. Govindaiah, B.Com., LL.B., allowed the anticipatory bail application filed under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in Criminal Miscellaneous No. 2998/2024. The court granted pre-arrest bail protection to Alpesh Kumar Vasudevbhai Patel in connection with Crime No. 795/2023 registered by the South CEN Crime Police Station, Bengaluru. The petitioner was facing apprehension of arrest for offences punishable under Sections 419 (cheating by personation) and 420 (cheating) of the Indian Penal Code (IPC), along with Sections 66(C) (identity theft) and 66(D) (cheating by personation using computer resource) of the Information Technology Act, 2000, pending on the file of the XLVI Additional Chief Metropolitan Magistrate, Bengaluru.

Factual Background and Cyber Crime Allegations

The criminal proceedings originated from a complaint lodged by a victim of a sophisticated online part-time job scam. On June 18, 2023, the complainant received an unsolicited WhatsApp message offering a part-time job that involved liking YouTube videos for financial compensation.

Upon expressing interest, the complainant was directed to join a Telegram group where links to various YouTube videos were shared. Initially, to build trust, the perpetrators credited Rs. 200 twice into the complainant’s account. Thereafter, the scammers informed the complainant that to become a formal employee and unlock higher earnings, it was mandatory to complete three “prepaid tasks,” requiring upfront money transfers to specified bank accounts.

Lured by the promise of lucrative returns, the complainant transferred funds from his personal bank account as well as his sister’s account, amounting to a total sum of Rs. 10,03,695/- across multiple transactions into various destination accounts. Once the transfers were completed, the perpetrators blocked communication and failed to return the funds or pay the promised earnings. Realizing he had been defrauded, the victim lodged a formal complaint with the South CEN Crime Police Station.

The cause title captures the background details of the petitioner:

• Alpesh Kumar Vasudevbhai Patel: Aged 38 years, son of Vasudevbhai Patel, residing at No. A-206, Swaman Solarity, Near Aditya Green, Opp. RJ Prime, Zundal, Gandhinagar, Gujarat.

Arguments Advanced on Behalf of the Petitioner

Appearing on behalf of the applicant, learned advocate Sri Hemanthkumar G.R. presented several grounds seeking pre-arrest protection:

• Absence of Name in FIR and Complaint: Defence counsel highlighted that the petitioner’s name was nowhere mentioned in either the initial FIR or the primary complaint lodged by the victim.
• Lack of Specific Overt Act: It was submitted that there were no specific allegations or overt acts attributed to the petitioner showing direct involvement in sending messages or receiving defrauded funds.
• Delay in Proceedings and Prima Facie Innocence: The defence argued that there was an unexplained delay in lodging the complaint and that no material was placed on record to establish a prima facie case against the applicant.
• Outstation Residency and Roots: The petitioner emphasized that he is a permanent resident of Gandhinagar, Gujarat, with no prior criminal antecedents, and that an unexpected arrest would cause severe damage to his reputation and personal liberty.
• Undertaking to Cooperate: The applicant assured the court of his full cooperation with the investigating agency, readiness to abide by all imposed conditions, and willingness to furnish solvent sureties.

Objections Raised by the Prosecution

The Public Prosecutor strongly opposed the grant of anticipatory bail, filing detailed statement of objections:

• Prima Facie Cyber Fraud Materials: The prosecution contended that case records and bank trail disclosures pointed toward the petitioner’s involvement in a organized cheating racket.
• Risk of Non-Cooperation and Flight: It was argued that because the petitioner resides in Gujarat, granting pre-arrest bail would result in him absconding, evading police summons, failing to cooperate with technical investigation, and delaying trial proceedings.
• Apprehension of Evidence Tampering: The prosecution expressed concern that the applicant might tamper with digital evidence, threaten witnesses, or interfere with ongoing efforts to trace the money trail.

Judicial Findings and Detailed Legal Reasoning

The Sessions Court evaluated the complaint, prosecution papers, and arguments from both sides to decide Point No. 1: whether the petitioner made out a case for pre-arrest protection under Section 438 Cr.P.C.

1. Absence of Specific Role at the Interlocutory Stage

Judge T. Govindaiah observed that upon reviewing the prosecution papers, the exact role played by the petitioner in the illegal transfer of funds was not immediately clear or established. The court noted that whether the petitioner actively participated in the bank transfers or acted as an account holder remained a subject of detailed ongoing investigation. In the absence of direct, specific allegations in the initial records, the court held that pre-arrest relief could be extended subject to strict conditions.

2. Precedent on Scope and Purpose of Section 438 Cr.P.C.

To support the grant of anticipatory bail, the court relied on the landmark Supreme Court decision in Bhadresh Bipinbhai Sheth v. State of Gujarat and Another [(2016) 1 SCC 152]. Citing the Apex Court ruling, the Special Court emphasized:

• Section 438 Cr.P.C. must be given its full play, and there is no justification for reading into it the statutory limitations of Section 437 Cr.P.C.
• A person seeking anticipatory bail remains a free individual entitled to the presumption of innocence until proven guilty.
• Where an applicant is willing to submit to judicial restraint and conditions, courts should exercise power under Section 438 Cr.P.C. to safeguard personal liberty and protect individuals from unjustified arrest and humiliation.

3. Balancing Liberty with Investigation Safeguards

Holding that the prosecution’s apprehensions regarding flight risk and witness interference could be effectively managed by imposing stringent conditions—including local territorial restrictions and regular reporting—the court resolved Point No. 1 in the affirmative.

It remains a settled principle of criminal jurisprudence that an order deciding an anticipatory bail application is procedural in nature and does not constitute an expression on the final guilt or innocence of the accused, which remains subject to full-fledged investigation and trial.

Final Pre-Arrest Bail Order and Imposed Conditions

Answering Point No. 1 in the affirmative, LVI Additional City Civil & Sessions Judge Sri T. Govindaiah allowed the petition filed under Section 438 Cr.P.C. and passed the following order:

The petition filed by the petitioner under Section 438 of Cr.P.C. is hereby allowed. The petitioner, Alpesh Kumar Vasudevbhai Patel, is ordered to be released on bail in the event of his arrest in Crime No. 795/2023 of South CEN Crime Police Station, pending on the file of the XLVI Additional Chief Metropolitan Magistrate, Bengaluru, subject to the following conditions:

1. The petitioner shall execute a personal bond for Rs. 1,00,000/- (Rupees One Lakh only) and shall furnish two sureties for the likesum to the satisfaction of the trial court.
2. The petitioner shall appear before the concerned court and move a regular bail application within 15 days from the date of this order.
3. The petitioner shall appear before the respondent police as and when called for and cooperate with the investigation.
4. The petitioner shall not leave the jurisdiction of Bengaluru.
5. The petitioner shall not commit offences of a similar nature in the future.
6. The petitioner shall produce his residential address proof.

Note: Violation of any of the above conditions will amount to automatic cancellation of bail.