Gujarat High Court
Devanandbhai Vasantbhai Salve vs State Of Gujarat on 6 January, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/122/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR MODIFICATION OF ORDERS) NO.
122 of 2017
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DEVANANDBHAI VASANTBHAI SALVE....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR SUDHANSHU S PATEL, ADVOCATE for the Applicant(s) No. 1
MR HS SONI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 06/01/2017
ORAL ORDER
1 RULE. Mr. Soni, learned additional Punic Prosecutor waives service of notice of Rule for and on behalf of the respondentState.
2 This is an application under Sections 439 read with 482 of the Code of Criminal Procedure, 1973 for deletion of the condition of bail granted to the applicant by an order dated 26th December 2016 passed in Criminal Application No.210 of 2016 by the learned Sessions Court, Tapi at Vyara.
3 By passing the aforesaid order, the Sessions Court, Tapi had granted bail on several conditions to the applicant in connection with the First Information Report being IC.R. No.111 of 2016 registered with the Vyara Police Station, District: Tapi for the offence punishable under Sections 406, 417, 419 and 420 of the Indian Penal Code. One of the Page 1 of 4 HC-NIC Page 1 of 4 Created On Sat Aug 12 01:34:14 IST 2017 R/CR.MA/122/2017 ORDER conditions is of depositing an amount of Rs.11 Lac with the concerned Sessions Court and upon receiving such deposit, the same was to be deposited in a fixed deposit with the Nationalized Bank.
4 Heard Mr. Shudhanshu, learned advocate appearing for the applicant and Mr. Soni, the learned Additional Public Prosecutor appearing for the respondent - State.
5 The learned advocate for the applicant submits that the condition thus imposed by the Sessions Court is an onerous condition. He submits that at no stage the applicant had volunteered to show readiness to deposit such amount. He submits that imposing the condition on the applicant is such that it will be impossible for the applicant to deposit such a huge amount, as directed by the Court. In the result, the applicant is granted bail, still as on date, he is languishing in jail. He further submits that even on merits, considering the nature of offence and the maximum sentence of the alleged offence can be awarded and the fact that the investigation is also concluded, it is not necessary that the applicant should languish in jail any further.
6 The learned advocate for the applicant relies upon the judgment of the Apex Court reported in AIR 2000 SC 714 in the case of Sandeep Jain vs. National Capital Territory of Delhi to substantiate his argument that the condition which is an onerous condition may not be imposed so as to frustrate the order of bail.
7 As against this, the learned A.P.P., upon verification, submits that at no stage the applicant appears to have volunteered to deposit the amount. However, he supports the order of the Sessions Court on the ground that the nature of offence is such that the applicant has duped many persons who are the witnesses and that the amount is to the tune Page 2 of 4 HC-NIC Page 2 of 4 Created On Sat Aug 12 01:34:14 IST 2017 R/CR.MA/122/2017 ORDER of Rs.23 Lac, and therefore, the Sessions Court is justified in imposing such conditions.
8 Having considered the rival submissions, this Court is of the view that if the Sessions Court thought it fit to exercise the discretion in favour of the applicant to enlarge him on bail on merits, then the onerous condition may not be imposed so as to frustrate the very order of grant of bail.
9 The Apex Court in the case of Sandeep Jain (supra) has held in para 4 as under:
"We are unable to appreciate even the 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 chargesheeted by the police."Page 3 of 4
HC-NIC Page 3 of 4 Created On Sat Aug 12 01:34:14 IST 2017 R/CR.MA/122/2017 ORDER 10 In view of the aforesaid, the condition of depositing an amount of Rs.11 Lac in cash with the Sessions Court, Tapi at Vyara is hereby deleted and consequently, the condition No.5 of the order dated 26th December 2016 passed in Criminal Application No.210 of 2016 by the learned Sessions Court, Tapi at Vyara stands deleted. The remaining conditions of the order are maintained. This application is accordingly disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(A.Y. KOGJE, J.) chandresh Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat Aug 12 01:34:14 IST 2017