Gujarat High Court
Rafikbhai Gulamnabi Vohra & 2 vs State Of Gujarat on 17 March, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
R/SCR.A/6718/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (MODIFICATION/DELETION OF
CONDITION) NO. 6718 of 2016
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RAFIKBHAI GULAMNABI VOHRA & 2....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR RM PARMAR, ADVOCATE for the Applicant(s) No. 1 - 3
MR RUTVIJ OZA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 17/03/2017
ORAL ORDER
The Court of 2nd Additional Sessions Judge, Kheda at Nadiad by order dated 21.10.2015 passed in Criminal Misc. Application No. 689 of 2015 granted anticipatory bail to the present applicants under Section 438 of the Code of Criminal Procedure, 1973.
2. The applicants were arrested on 16.09.2015 in connection with the First Information Report bearing C.R. No.I-109 of 2015 registered with Thasra Police Station in respect of offence under Sections 379, 461 and 114 of the Indian Penal Code, 1860.
3. What is alleged against the applicants accused is that applicant No.1 committed an act of misappropriation of the amount of co-operative society for which the complaint was lodged before the Sevalia Police Station; applicant Nos.2 and 3 alleged to have stolen the bags containing the original documents in respect of the complaint from the Car of the complainant bearing No. GJ-
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07AG-9341.
3.1 While releasing the applicants on bail as above, the
learned Sessions Judge imposed a condition, amongst other conditions, of deposit of Rs.5,000/- each. By filing the present application, the applicants pray to delete the said condition whereby they were directed to deposit the amount while granting the bail.
3.2 In the present application, it is contended that the condition of deposit of the amount is harsh and is irrelevant. It is contended that the condition amounts to denial of bail on the other hand by another stroke. It was submitted that even otherwise, looking to the nature of misconduct alleged, no such condition could have been imposed.
4. Heard learned advocate Mr. R. M. Parmar for the applicants and learned Additional Public Prosecutor Mr. Rutvij Oza for the respondent State.
4.1 Learned advocate for the applicants relied on the order of this Court in Iqbalbhai Rehmanbhai Vohra (Mohammed Iqbal Haji Rehmanbhai Vora) vs. State of Gujarat being Criminal Misc. Application No.23535 of 2015 dated 10.12.2015 wherein this Court had set aside the condition of deposit of Rs.5000/-. Another decision of the Supreme Court in Munish Bhasin and ors. vs. State (Government of NCT of Delhi) and anr. [(2009) 4 SCC 45] was also pressed into service.
5. In Munish Bhasin (supra), the Supreme Court stated that while allowing the bail under Section 438 of the Code, only relevant condition could be imposed. In that case, the condition of awarding and paying maintenance Page 2 of 6 HC-NIC Page 2 of 6 Created On Mon Aug 14 14:52:32 IST 2017 R/SCR.A/6718/2016 ORDER every month was imposed. The Supreme Court stated that the same was irrelevant condition and could not have been imposed. The said was a condition onerous and unwarranted and could not have been imposed. Following observations in paragraphs 10 to 13 made by the Apex Court may be extracted with relevance, "10. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all.
11. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub- section (3) of Section 437 of the Code. Normally, conditions can be imposed (i) to secure the presence of the accused before the investigating officer or before the Court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under Section 438 of the Code.
12. While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under Section 438 of the Code.
13. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant Page 3 of 6 HC-NIC Page 3 of 6 Created On Mon Aug 14 14:52:32 IST 2017 R/SCR.A/6718/2016 ORDER and his parents were entitled to bail under section 438 of the Code. When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/- for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child."
5.1 Learned advocate for the applicants could successfully submit that the condition of deposit of Rs.5,000/- 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 Capital 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 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. More so, 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 charge-sheeted by the police."
(Para 4)
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5.2 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 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) 5.3 Learned advocate relied on order dated 06.01.2017 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, condition of 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) Page 5 of 6 HC-NIC Page 5 of 6 Created On Mon Aug 14 14:52:32 IST 2017 R/SCR.A/6718/2016 ORDER
6. In view of the aforesaid position of law, the condition requiring the applicants to deposit Rs.5,000/- each as imposed by learned Sessions Judge cannot be allowed to stand. Accordingly, the said condition whereby the learned Sessions Judge directed the applicants to deposit Rs.5,000/-each is hereby set aside.
6.1 As a result, the condition of deposit of Rs.5,000/- imposed in order dated 21.10.2015 passed in Criminal Misc. Application No. 689 of 2015 by 2nd Additional Sessions Judge, Kheda at Nadiad is hereby deleted. The order of learned Sessions Judge dated 21.10.2015 shall stand modified accordingly.
7. The application is allowed in the aforesaid terms.
Direct service is permitted.
(N.V.ANJARIA, J.) chandrashekhar Page 6 of 6 HC-NIC Page 6 of 6 Created On Mon Aug 14 14:52:32 IST 2017