Gujarat High Court
Vinod @ Lalo Ravji Vaghela vs State Of Gujarat on 20 April, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
R/CR.MA/10135/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR MODIFICATION OF ORDERS) NO.
10135 of 2017
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VINOD @ LALO RAVJI VAGHELA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
VISHAL K ANANDJIWALA, ADVOCATE for the Applicant(s) No. 1
MR. L.B.DABHI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 20/04/2017
ORAL ORDER
The Court of learned Principal Sessions Judge, Kheda-Nadiad, by order dated 20th January, 2017 in Criminal Miscellaneous Application No. 45 of 2017 granted bail to the applicant herein under Section 439 of the Code of Criminal Procedure, 1973.
2. The applicant was arrested on 09th January, 2017 in connection with Prohibition Offence bearing Crime Register No. 883 of 2016 registered on 25.12.2016 with Chaklasi Police Station, Kheda in respect of the alleged offences under Sections 66(1)(B), 65(A)(E), 67(A), 116(B), 99 of the Prohibition Act.
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 was to deposit Rs.1,00,000/- in the Court and to be returned only at the conclusion Page 1 of 5 HC-NIC Page 1 of 5 Created On Wed Aug 16 04:08:06 IST 2017 R/CR.MA/10135/2017 ORDER 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.
4. Heard learned advocate Mr. Rajdeep Champawat for learned advocate Mr. Vishal Anandjiwala for the applicant and learned Additional Public Prosecutor Mr.L.B.Dabhi for the respondent-State.
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 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 Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Aug 16 04:08:06 IST 2017 R/CR.MA/10135/2017 ORDER 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 charge-sheeted 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 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 Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Aug 16 04:08:06 IST 2017 R/CR.MA/10135/2017 ORDER 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 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/-.
6.1 It was stated by learned advocate for the applicant by producing a copy of receipt that the applicant had to deposit the amount of Rs. 1,00,000/- as per the condition as it was inevitable for him to enjoy the bail. Since this application is being allowed, the applicant shall be entitled to get back the amount.
7. As a result, while deleting the condition No.2 Page 4 of 5 HC-NIC Page 4 of 5 Created On Wed Aug 16 04:08:06 IST 2017 R/CR.MA/10135/2017 ORDER of deposit of Rs. 1,00,000/-, the applicant is directed to furnish a personal bond of Rs. 75,000/-. The order of learned Sessions Judge dated 20th January, 2017, shall stand modified accordingly. The amount of Rs. 1,00,000/- shall be refunded and paid back to the applicant. The application is allowed in the aforesaid terms.
Direct service is permitted.
(N.V.ANJARIA, J.) cmjoshi Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Aug 16 04:08:06 IST 2017