Gujarat High Court
Jivrajbhai Ramjibhai Patel & vs State Of Gujarat & on 28 March, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/1402/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1402 of 2017
With
SPECIAL CRIMINAL APPLICATION NO. 1415 of 2017
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JIVRAJBHAI RAMJIBHAI PATEL & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HRIDAY BUCH, ADVOCATE for the Applicant(s) No. 1 - 2
MR MAULIK J SHELAT, ADVOCATE for the Respondent(s) No. 2
MS NISHA THAKORE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/03/2017
COMMON ORAL ORDER
By these applications under Article 227 of the Constitution of India, the applicants-original accused persons, have prayed for the following reliefs :
"(a) Your Lordships be pleased to admit and allow this petition;
(b) Your Lordships be pleased to allow this petition by way of issuing any appropriate writ, order or direction for quashing and setting aside the Criminal Case No.7123 of 2010 pending in the court of Ld.Additional Civil Judge and JMFC, Bhavnagar arising out of the complaint filed by the respondent no.2 herein and all other proceedings subsequent thereto.
(c) Your Lordships be pleased to quash and set aside the Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Aug 13 20:55:53 IST 2017 R/SCR.A/1402/2017 ORDER order below exhibit-209 dated 20.1.2017 passed by the Ld. 2nd Addl. Civil Judge and JMFC, Bhavnagar in Criminal Case No.7123/2010 whereby the petitioners are ordered to deposit their passports with the Hon'ble Court.
(d) Pending admission, hearing and final disposal of the present petition, Your Lordships be pleased to stay the further proceedings in Criminal Case No.7123/2010 pending in the court of Ld. Additional Civil Judg eand JMFC, Bhavnagar and thereby also stay the order below exhibit-209 dated 20.1.2017 passed by the Ld. 2nd Addl.
Civil Judge and JMFC, Bhavnagar in Criminal Case No.7123/2010 whereby the petitioners are ordered to deposit their passports with the Hon'ble Court.
(e) Your Lordships be pleased to pass any other appropriate and just order/s in the interest of justice;"
At the outset, Mr.Hriday Buch, the learned counsel appearing for the applicants, submitted that he is pressing only the relief sought for with respect to the order passed by the learned JMFC, Bhavnagar, below Exh.209 dated 20th January 2017 in the Criminal Case No.7123 of 2010. He submits that other reliefs are not pressed.
It appears from the materials on record that the applicants herein are the original accused persons in the Criminal Case No.7123 of 2010 instituted by the respondent no.2 herein - original complainant for the offence punishable under Sections 348, 357, 503, 506(2) read with Section 34 of the Indian Penal Code.
I am informed that the charge has also been framed after completion of the recording of the pre-charge evidence. The recording of the evidence after the framing of the charge is to commence shortly. In the midst of the trial, the complainant preferred an application Exh.209 apprehending that the Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Aug 13 20:55:53 IST 2017 R/SCR.A/1402/2017 ORDER applicants herein are likely to leave India and thereby frustrate the trial. In such circumstances, the learned JMFC, vide order dated 20th January 2017, thought fit to pass an order directing the applicants herein to deposit their passports within ten days from the date of the order.
In the mean time, the applicants came before this Court with the present applications.
On 21st February 2017, the following order was passed :
"Let Notice be issued for final disposal to the respondents, returnable on 07/03/2017. Ms. Thakore, the learned Additional Public Prosecutor waives service of notice for and on behalf of the respondent no.1-State of Gujarat. Direct service for respondent no.2.
Let there be an ad-interim order in terms of Para-7(d). Notify the matter on top of the board."
Mr.Buch, the learned counsel, vehemently submitted that the order passed by the learned JMFC below Exh.209 could be termed as erroneous and without jurisdiction. According to Mr.Buch, all the offences are bailable, and in such circumstances, the learned JMFC could not have passed an order of depositing of the passports.
In support of his submissions, he seeks to rely on a decision of this Court in the case of Hasmukhlal Kalidas Choksi and others v. State of Gujarat, (2007)2 GLH 12. A learned Single Judge of this Court took the view that if the offences are bailable, then the Court has no jurisdiction to impose conditions at the time of release of the accused on bail. I may quote the observations made by the learned Single Judge as Page 3 of 9 HC-NIC Page 3 of 9 Created On Sun Aug 13 20:55:53 IST 2017 R/SCR.A/1402/2017 ORDER under :
"10. In the case of Anwar Hussain v. State of Orissa, 1995 CrLJ 863, it is stated as under :
"5. Chapter XXXIII consists of Secs. 436 to 450. Sections 436 and 437 provides for the granting of bail to accused persons before trial and conviction. For the purposes bail offences are classified into two category i.e. (i) bailable, and (ii)non-bailable. Section 436 provides for granting bail in bailable cases and Sec.437 in non-bailable cases. A person accused of bailable offence is entitled to be released on bail pending his trial. In case of such offences, a police officer has no discretion to refuse bail if the accused is prepared to furnish surety. The Magistrate gets jurisdiction to grant bail during the course of investigation when the accused is produced before him. In bailable offence, there is no question of discretion for granting bail. The only choice for the Court is as to taking a simple recognizance of the principal offender or demanding security with surety. Persons contemplated by this Section cannot be taken into custody unless they are unable or unwilling to offer bail or to execute personal bond. The Court has no discretion, when granting bail under this Section, even to impose any condition except the demanding of security with sureties."
11. In the case of Rex v. Genda Singh,1950 AIR(All) 417, it is held as under :
"I am, therefore, of opinion that in bailable cases no condition can be imposed. The order granting bail can just fix the amount for which the accused is to furnish the bond, the number of the sureties to be furnished and the amount for which each of the sureties is to furnish the bond. I, therefore, reject this application."
12. In the case of Azeez v. State of Kerala,1984 2 Crimes 413, the Kerala High Court observed as under :
"3. The petitioner, being a person accused of only Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Aug 13 20:55:53 IST 2017 R/SCR.A/1402/2017 ORDER bailable offence, has aright to be enlarged on bail. There is no discretion with the Court enabling it to grant or refuse bail. The Court is required to grant bail in such a case,though the Court is at liberty to modulate the terms as to bail. This certainly does not mean that the Court can impose a condition which is not a term as to bail. The condition that a person accused of bailable offence has to surrender his passport in Court is not a term as to bail, and therefore, cannot be imposed by a Magistrate under Sec. 436 of the Code. The condition imposed is illegal and has to be set aside."
13. In the case of Hanumanthe Gowda & Anr. v. State of Karnataka, it is held as under :
"The wordings of the three Sections make it clear that under Sec. 436 of the Code of Criminal Procedure, there is no discretion left to the Court to impose a condition while releasing a person on bail when he is accused of a bailable offence. I am in respectful agreement with the judgments cited above of the Madras High Court. I, therefore, hold that the conditions imposed by the learned Magistrate while granting bail to the petitioners are without jurisdiction and they are accordingly set aside except releasing the petitioners on bail on their executing a personal bond for Rs. 10,000/- each with one surety for like sum for their appearance."
14. In the case of Kanubhai Chhaganlal Brahmbhatt v. State of Gujarat& Ors., 1972 GLR 748 it is held that the whole question of producing the accused before a Magistrate would only arise if the accused was not prepared to give bail before the police officer after his arrest and even when he is produced before the Magistrate and he is prepared to give bail, the Magistrate has no option but to release him on bail so far as bailable offence is concerned.
15. In the case of District Magistrate of Vizagapatanam, 1949 AIR(Mad) 77, it is held as under :
"4. In bailable offences, it is well settled that there is no question of discretion in granting bail as the Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Aug 13 20:55:53 IST 2017 R/SCR.A/1402/2017 ORDER words of the Section are imperative. The only choice for the Court is as between taking a simple recognizance of the principal offender or demanding security with surety. Ordinarily, the word .bail. applies to the second kind of security according to the practice and procedure of the Courts. The Criminal Court has no discretion in a bailable offences while granting bail under Sec. 496, Criminal P.C. impose any condition except the demanding of security with sureties. The reference is accepted and the order of the Magistrate passed on 14th August, 1947, granting bail to the accused is modified by deleting from the order the conditions mentioned above."
16. In the case of In Re : Kota Appalakonda, 1942 AIR(Mad) 740 it is held that where a person is charged with bailable offences only, the Magistrate has no discretion in granting bail, and hence, the imposing of a condition e.g. not to enter on the disputed land, in a bail order leads to the infringement of the provisions of Sec. 496 in case the condition be not fulfilled. Such is not one authorized by law.
17. It is also relevant to quote certain Paragraphs as stated in the Thirty-Sixty Report on Secs. 497, 498 and 499 of Cr.P.C. - grant of bail with conditions (December 1967) :
"6. The amendment suggested by the State Government seeks to replace Sec.497(1) as follows:-
"(1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail which may be subject to such conditions as may appear necessary in a particular case if the offence is one punishable with imprisonment, extending to seven years or more or is one falling under Chapters VI, XVI and XVII of the Indian Penal Code including abetment, conspiracy or attempt to commit any such offence, but shall not be so Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Aug 13 20:55:53 IST 2017 R/SCR.A/1402/2017 ORDER released if there appear reasonable grounds for believing :-"
(i) that he is likely to tamper with the evidence, or
(ii) that he has been guilty of an offence punishable with death or imprisonment for life;
Provided that the Court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of such an offence be released on bail.
Explanation : In granting a conditional bail, the Court may impose conditions like requiring the person to reside in a particular locality or to report to the police or any other specified authority.
15. In bailable cases, i.e. those governed by Sec.496, the Court cannot, it seems, impose conditions, as the accused has a right to bail (Nor can a police officer impose conditions requiring attendance before the police."
This does not, of course, affect the High Court's power to cancel bail in case of abuse.
This jurisdiction springs from the over-riding inherent powers of the High Court and can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody."
18. From the above settled law, it is clear that when a person is charged with bailable offences and when he is released on bail, the Court has no discretion in granting bail and no condition can be imposed. On the facts of the case,it is clear that after filing of the charge-sheet, all the offences are bailable offences. On the facts of the case, it is clear that the alleged offences are bailable,and therefore, the conditions imposed by this Court earlier require to be deleted in view of change of circumstances.
19. Now, since the offences are bailable offences, I do Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Aug 13 20:55:53 IST 2017 R/SCR.A/1402/2017 ORDER not find any substance in the contention raised by Mr. Kogje that these are not malicious proceedings,and therefore, the petition cannot be entertained. When the charge-sheet has been filed, and if the offences are bailable, no conditions can be imposed. Mr. Kogje is unable to dispute this position.
20. Power to impose conditions is only in case of non- bailable offence and that too where it is punishable for more than seven years. Under the provisions of Cr.P.C. only in non-bailable offences conditions of bail can be imposed on an accused while being released on bail."
The judicial decorum and propriety demands that sitting as a Single Judge, I must follow the dictum laid by a coordinate bench. However, I have my own reservations as regards the correctness of the law laid down in the aforesaid decision of this Court. Ordinarily, if a Single Judge disagrees with a judgment of a coordinate bench, the matter should be referred to a Division Bench. However, in my view, for the purpose of deciding the legality and validity of the order passed by the learned JMFC below Exh.209, the decision relied upon by Mr.Buch is not much relevant.
Without going into the correctness of the proposition of law laid down by the learned Single Judge, I am of the view that even if the offences are bailable, but in the midst of the trial if the Court finds, on the basis of some material, that the accused are likely to flee and thereby put the trial in a jeopardy, then it is always open for the trial Court to take care of such a situation and impose appropriate conditions.
In my view, no error, not to speak of any error of law, could be said to have been committed by the trial Court in passing the impugned order below Exh.209. No interference is Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Aug 13 20:55:53 IST 2017 R/SCR.A/1402/2017 ORDER warranted in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
I direct the trial Court to complete the trial with judgment within a period of three months from the date of receipt of this order.
(J.B.PARDIWALA, J.) MOIN Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Aug 13 20:55:53 IST 2017