Gujarat High Court
Bashir Yasin Shaikh vs State Of Gujarat on 4 July, 2019
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/9207/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9207 of 2019
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BASHIR YASIN SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR PRASHANT PANDEY for MR RITURAJ M MEENA(3224) for the
Applicant(s) No. 1
MR LB DABHI APP(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 04/07/2019
ORAL ORDER
1. The present application has been filed by the applicant inter alia praying for quashing and setting aside the order dated 26.03.2019 passed by the learned 5th Additional Sessions Judge, Bharuch at Ankleshwar in Criminal Revision Application No.19/2019 as well as the order dated 02.02.2019 passed by the learned 2nd Judicial Magistrate, First Class, Ankleswar, Bharuch, by which, condition has been imposed upon the applicant to deposit the amount.
2. It is contended by learned advocate for the applicant that the applicant is an accused in connection with an FIR being C.R. No.I107/2013 registered with Ankleshwar GIDC Police Station for the offences under Sections 406, 420, 506(2) and 120(B) of the Indian Penal Code, wherein the allegations have been made with regard to siphoning off an amount of Rs.32.00 lakhs and apprehending arrest in connection with the said Page 1 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER FIR, the applicant had filed an application for anticipatory bail before the learned Sessions Court being Criminal Misc. Application No.436/2013 and the learned Sessions Court, by an order dated 08.07.2013, was pleased to allow the said application and granted anticipatory bail to the applicant herein on a condition to deposit an amount of Rs.32.00 lakhs before the concerned Sessions Court. It is submitted that the applicant had challenged the said condition of deposit of the amount before this Court by filing Criminal Revision Application No.464/2013, however, this Court rejected the said application by an order dated 08.01.2014. It is further contended that the said order was challenged before the Hon'ble Supreme Court by filing Special Leave to Appeal (Cri) No.2902/2014 and the Hon'ble Supreme Court also rejected the said Appeal by an order dated 04.04.2014. It is submitted that since the applicant was not in a position to deposit the said amount, the applicant could not be released on anticipatory bail and, hence at present, he is in jail. It is submitted that thereafter, the applicant came to be arrested on 16.01.2019 and sent to the judicial custody, therefore, the applicant preferred an application under Section 437 of the Criminal Procedure Code, 1973 for bail and the learned 2nd Judicial Magistrate, First Class, Ankleswar, Bharuch, by an order dated 02.02.2019, was pleased to allow the said application and granted bail to the applicant herein on a condition to deposit an amount of Page 2 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER Rs.32.00 lakhs, which is the same condition imposed upon the applicant at the time of granting anticipatory bail. The applicant submits that against the said condition imposed upon the applicant while granting regular bail, the applicant preferred Criminal Revision Application No.19/2019 before the concerned Sessions Court, Ankleshwar, however, the concerned Sessions Court rejected the said application by an order dated 26.03.2019. It is, therefore, contended that the applicant had approached this Court by filing Special Criminal Application No.4242/2019, however, the said application was withdrawn by an order dated 18.04.2019. It is, therefore, contended that the present application is filed for quashing and setting aside both the aforesaid orders imposing the condition to deposit the amount as stated in the orders as it is too harsh and in fact, it is not possible for the applicant to deposit the said amount. It is contended that the applicant was suffering from kidney disease and bloodsugar and for the said treatment, huge expenses has occurred and at present also, treatment is going on. It is, therefore, urged that the said condition may be suitably modified.
3. Learned advocate for the applicant has relied upon the judgment of the Hon'ble Supreme Court in case of M.D. Dhanapal Vs. State Rep. By the Inspector of Police, delivered in Special Leave to Appeal (Crl.) Nos.51955196/2019 and submitted that in the said case, the concerned applicant was directed to pay total amount of Rs.70,000/ to the Page 3 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER family members/legal heirs of each deceased and the Hon'ble Supreme Court set aside those condition imposed upon the concerned application. Learned advocate has also referred to the judgments, compilation of which has been supplied and submitted that in those cases also, the Hon'ble Court has interfered with such condition and passed appropriate orders. He has also placed reliance upon the judgment of the Hon'ble Supreme Court in case of Sandeep Jain Vs. NCT of Delhi, reported in (2000) 2 SCC 66. He further submits that the applicant is ready and willing to deposit an amount of Rs.10,00,000/ before the concerned trial court within eights weeks from the date of his release and instead of surety of Rs.1,00,000/, the applicant will deposit provisional cash bail an amount of of Rs.15,000/. He submitted that though the applicant is not involved in the alleged commission of offence, he has to suffer though he has been granted regular bail but because of the condition imposed upon him, he has not come out from the jail till date. It is, therefore, urged that the present application may be allowed.
4. On the other hand, learned Public Prosecutor has opposed this application and submitted that while passing order by the learned Magistrate, the learned Magistrate has taken into consideration the facts of the present case, which has been rightly confirmed by the concerned Sessions Court and, hence, no interference of this Court is required. He, therefore, submitted that from the Page 4 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER material and evidence, it is revealed that the applicant has committed alleged offence and, hence, the concerned Magistrate has directed the applicant to deposit the said amount, which cannot be said to be harsh condition.
5. I have heard learned advocates appearing for the parties and also considered the submissions canvassed by learned advocates for the parties and also gone through the material and evidence placed on record. From the material and evidence produced on record, it is evident that the applicant has not made any voluntary statement before the concerned Sessions Court for the deposit of the amount and despite that, while enlarging the application on regular bail, such condition has been imposed upon the applicant to deposit the entire alleged amount as mentioned in the FIR.
6. At this stage, the decisions rendered by the Hon'ble Supreme Court on this issue are required to be considered. In case of Sandeep Jain (supra), the Hon'ble Supreme Court has observed as under, "3. Appellant moved the Session Court for releasing him on bail and when it failed he moved to the High Court for some relief. But even the High Court did not help him. The impugned order was passed by a learned Single Judge of the High Court dismissing his petition. We are told that appellant had, after he was released on bail, made a cash payment of Rs. 50,000/ to the complainant.
4. We are unable to appreciate even the Page 5 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lacs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs. 2 lacs. If the cheques issued by his surety were dishonoured, the court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to his legal remedies provided by law. Similarly if the court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge Page 6 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER sheeted by the police."
7. In case of M.D. Dhanapal (supra), the Hon'ble Supreme Court has observed as under, "By the impugned order dated 30.04.2019, the High Court granted bail to the petitioner, M.D. Dhanapal, the Chief Priest of Lord Sri Vaalavaikkum Vandithurai Karuppannasamy Temple at Muthiyampalayam Village, Thuraiyr Taluk, Tiruchirapalli, who had been arrested pursuant to an F.I.R. in connection with the accident, on condition that he would pay Rs.10,00,000/ (Rupees ten lakhs only) each by bank drafts in the name of one of the family members/legal heirs of each of the deceased pilgrims who had come to the temple in connection with some of the temple rituals and got killed in the stampede outside the Temple. The petitioner is aggrieved by the onerous condition of having to pay a total amount of Rs.70,00,000/ (Rupees Seventy Lakhs only) upfront, as a condition for bail.
The High Court cannot be faulted as from the orders impugned it is patently clear that it was the learned lawyer appearing on behalf of the petitioner who had offered to pay Rs.10,00,000/ (Rupees ten lakhs only) to the family members/legal heirs of each of the deceased pilgrims.
xxx xxx xxx Page 7 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER
In this Court it is submitted that the petitioner, who was rendering devotional services in a relatively small Temple at Tiruchirapalli, with little come does not have the requisite funds.
If the petitioner lacks funds, undertaking ought to have been given to the Court. Be that as it may, it is well settled that bail cannot be made conditional upon heavy deposits beyond the financial capacity of an applicant for bail.
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Having regard to the facts and
circumstances of the case and the
allegations in the F.I.R., we deem it
appropriate to waive the condition of
payment to the family members/legal heirs of the deceased victims for the purpose of grant of bail. The concerned Judicial Magistrate may grant bail on conditions as he may deem fit to his satisfaction. We order accordingly."
8. Even this Court in the order dated 20.04.2017 passed in case of Vinod @ Lalo Ravji Vaghela Vs. State of Gujarat, delivered in Criminal Misc. Application No.10135/2017 has observed as under,
3. Learned Principal Sessions Judge, Nadiad, Kheda, while passing the order of granting bail imposed certain conditions, wherein the condition no.2 was that the petitioner Page 8 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER was to deposit Rs.1,00,000/ in the Court and to be returned only at the conclusion of case, and if the applicant remains absent for 3 consecutive dates, competent court can pass a just and proper order with respect to Rs. 1,00,000/. By filing the present application, the applicant prays to delete the said condition whereby he was directed to deposit the amount.
5. Learned advocate for the applicant could successfully submit that the condition of deposit of Rs. 1,00,000/ imposed by the Sessions Court was not only too onerous to be complied with, but also that the condition of the nature could not have been imposed in law by the Court while granting bail. In Sandeep Jain v. National Captial Territory of Delhi [AIR 2000 SC 714] observing on a similar condition of paying Rs.02.00 lakhs imposed by the court for releasing the accused on bail, the Court stated, "Order was passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lacs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient Page 9 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER indication that he was unable to make up the amount. Accused cannot be detained in custody endlessly for his inability to pay the amount in the range of Rs. 2 Lacs. If the cheques issued by his surety were dishonoured, the Court perhaps have taken it as a ground to suggest to the payee of the cheques to resort to his legal remedies provided by law.
Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. Moreso, when the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is chargesheeted by the police."
5.1.1 The Supreme Court disapproved imposition of such condition by stating, "That apart no doubt accused should have raised objection that he is not in position to abide by such unusual Page 10 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER condition at the earlier stage. But his failure to do so then cannot now be used as a bar for preventing him from approaching the Court with a prayer to release him from bail. He cannot be detained in custody for long without conviction in a case of this nature. (para 5) 5.2 Learned advocate relied on order dated 06th January, 2017 passed in Criminal Miscellaneous Application No.122 of 2017 in case of Devanandbhai Vasantbhai Salve v. State of Gujarat in support of his submission. In yet another decision of this Court in Rajendrakumar Prabhatsinh Parmar v. State of Gujarat [2004 (4) GLR 3435], condition No.5 of the order granting bail provided for deposit of Rs.25,000/ by the applicant, it was further provided that the amount would stand forfeited automatically in breach of violation of any condition. The Court observed that, imposition of condition for deposit of amount coupled with this direction leaves no scope for any inquiry of adjudication on question whether there is, in fact, any breach or violation of any of the conditions. It was observed that Section 441 of the Cr.P.C. Does not contemplate cash surety. Finally the Court held, "Under the circumstances, conditon of Page 11 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER deposit of Rs.25,000/ and its forfeiture cannot be permitted to stand. The condition is beyond the scope of Secs. 441 and 445 of Criminal Procedure Code, apart from being harsh, unjust and violative of principles of natural justice as it leaves no scope of any inquiry, audience to accused or adjudicate on main question whether he has violated any of the conditions, and if so, whether accused is responsible for it and whether any action is required to be taken." (Para 8)
6. In view of the aforesaid position of law, the condition No.2 requiring the applicant to deposit Rs. 1,00,000/ as imposed by learned Sessions Judge cannot be allowed to stand. Accordingly the said condition No.2 whereby the learned Sessions Judge directed the applicant to deposit Rs. 1,00,000/ is hereby set aside, however as far as the condition of furnishing of personal bond of Rs.25,000/ is concerned, the same is modified and enhanced to Rs.75,000/."
9. In the judgment of the Hon'ble Supreme Court in case of M.M. Cooperative Bank Ltd. Vs. J.P. Bhimani & Ors., reported in (2009) 8 SCC 727, it is observed that while granting bail, the Court cannot impose unreasonable condition.
10. Therefore keeping in view of the aforesaid Page 12 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER decisions rendered by the Hon'ble Supreme Court as well as this Court, if the facts of the present case as discussed hereinabove are examined, it is revealed that the applicant is not in a position to deposit Rs.32.00 lakhs within stipulated time before the trial court and, therefore, though the order dated 02.02.2019 is passed by the concerned Magistrate, till date the applicant is not released on bail. From the facts of the present case, it is revealed that the condition imposed by the concerned Magistrate is an onerous when the applicant is not in a position to deposit the said amount, I am inclined to set aside the said condition. However as stated by learned advocate for the applicant under the instruction during the hearing of this application, the applicant will deposit an amount of Rs.10,00,000/ before the concerned trial court within eight weeks from the date of his release.
11. Accordingly, this application stands allowed. The the order dated 26.03.2019 passed by the learned 5th Additional Sessions Judge, Bharuch at Ankleshwar in Criminal Revision Application No.19/2019 is hereby quashed and set aside and the order dated 02.02.2019 passed by the learned 2nd Judicial Magistrate, First Class, Ankleswar, Bharuch is hereby modified and the condition imposed upon the applicant to deposit an amount of Rs.32,00,000/ within one month before the trial court by the order dated 02.02.2019 is hereby deleted. The applicant shall also deposit an amount of Rs.10,00,000/ as stated above before Page 13 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019 R/CR.MA/9207/2019 ORDER the concerned trial court within eight weeks from the date of his release. Further instead of furnishing two sureties of Rs.1,00,000/ each and personal bond of the like amount, the applicant shall deposit cash bail of Rs.15,000/. The applicant shall file an undertaking within a week from the date of his release before the concerned trial court with regard to the deposit of Rs.10,00,000/. All other conditions will remain unaltered.
12. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(VIPUL M. PANCHOLI, J.) Gautam Page 14 of 14 Downloaded on : Wed Jul 10 07:07:15 IST 2019