Gujarat High Court
Rajendra Jayantilal Thakkar vs State Of Gujarat on 22 September, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
R/SCR.A/3736/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION(QUASHING)NO.3736 of 2014
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RAJENDRA JAYANTILAL THAKKAR....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR UMESH A TRIVEDI, ADVOCATE for Applicant(s) No. 1
MR ALKESH N. SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/09/2014
ORAL ORDER
(1) By way of this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the petitioner has challenged the order dated 19.02.2014 passed by learned 3rd Additional Sessions Judge, Bhavnagar Camp at Mahuva in Criminal Misc. Application No.43 of 2014, so far as it relates to forfeiture of amount of Rs.1,50,000/ for breach of condition to the State Government.
(2) Mr.Umesh A. Trivedi, learned advocate for the petitioner, at the outset submitted that alternative prayer prayed for by the petitioner in Paragraph No.11(A) of the petition may be considered by this Court.
Page 1 of 7R/SCR.A/3736/2014 ORDER (3) Considering the issue involved, this petition is taken up for final disposal forthwith.
(4) The facts reveal that the petitioner is the accused in connection with the F.I.R. being C.R. No.I6 of 2012 registered with Alang Police Station, Dist. Bhavnagar for the offences punishable under Sections 406, 420, 467, 468, 471 and 114 of the Indian Penal Code, 1860. That pursuant to the said F.I.R. the petitioner was enlarged on anticipatory bail by order dated 28.02.2012 passed by learned 3rd Additional Sessions Judge, Bhavnagar Camp and Mahuva in Criminal Misc. Application No.28 of 2012, which order also entails condition not to leave territorial limits of India without prior permission of the said court and to surrender his passport, if any, before the Investigating Officer/learned Magistrate; else to submit affidavit, more particularly Condition No.5 thereof.
(5) It further appears that the petitioner in course of his business was required to Page 2 of 7 R/SCR.A/3736/2014 ORDER move out of territory of India and therefore he filed Criminal Misc. Application No.151 of 2013 for permitting him to leave territorial limits of India and to return his passport, which application came to be allowed by learned 3rd Additional Sessions Judge, Bhavnagar Camp and Mahuva vide order dated 26.07.2013 whereby the petitioner was permitted to leave India and to go Canada for a period of six months i.e. upto 26.01.2014 and returned the passport to petitioner on condition that the petitioner shall deposit Rs.1,50,000 before the trial Court. It was further directed that the petitioner should surrender the passport by 01.02.2014 before learned Judicial Magistrate, First Class, Talaja. Accordingly, the petitioner deposited the said amount before learned Judicial Magistrate, First Class, Talaja and the passport was handed over to him.
(6) The facts further reveal that because of the circumstances beyond the control, the petitioner returned to India on 04.02.2014, which shows that the Page 3 of 7 R/SCR.A/3736/2014 ORDER petitioner remained out of India nine days more than what was permitted vide the aforesaid order. It further appears that the petitioner thereafter filed an application being Criminal Misc. Application No.43 of 2014 for condoning the delay for depositing the passport and also prayed for deletion of the aforesaid condition No.5 from the order granting anticipatory bail to him as well as other ancillary prayers. That by the impugned order dated 19.02.2014 passed by learned 3rd Additional Sessions Judge, Bhavnagar Camp at Mahuva the prayer for deletion of Condition No.5 came to be rejected and also passed the order of forfeiture of the amount deposited by the petitioner. Being aggrieved by the same the petitioner preferred Criminal Misc. Application No.3369 of 2014 before this Court, which came to be partly allowed by this Court (Coram: S.G.Shah, J) vide order dated 23.04.2014 and this Court passed the following order:
"3. Whereas learned APP has submitted that in past petitioner has not abide by the condition imposed by the Court while releasing his passport for which an amount of Page 4 of 7 R/SCR.A/3736/2014 ORDER Rs.1,50,000/ was ordered to be forfeited, which was directed to be deposited for availing passport for couple of weeks. For the purpose, petitioner has prayed to quash and setaside such order dated 19.2.2014 in Criminal Misc.Application No.43 of 2014. Since two separate orders are challenged in one revision application, learned advocate for the applicant confirms that at present he would like to press this revision application against order dated 28.2.2012 and does not press other prayers for which he may file appropriate proceedings as and when and if so required.
4. After hearing both the sides and on perusal of record, I am of the opinion that it would be appropriate in the interest of justice to refuse such prayer to quash and setaside the order dated 19.2.2014, but at the same time, it would be appropriate to modify the condition No.5 of order dated 28.2.2012 in Misc.Criminal Application No.28 of 2012 by which petitioner was restrained from leaving India and to surrender his passport before the Investigating Officer or concerned Magistrate Court, when petitioner agrees to furnish bank guarantee for the entire deposited amount in dispute. The offence registered against the petitioner is under Sections 406, 420, 467, 468, 471 and 114 of the IPC. Therefore, bank guarantee of the entire disputed amount would be sufficient security for confirming the presence of the petitioner at the time of trial. It cannot be ignored that further investigation is stayed and quashing petition has already been admitted.
5. Therefore, condition No.5 of order dated 28.2.2014 in Misc. Criminal Application No.28 of 2012 is hereby modified in the following terms.
6. The petitioner shall furnish bank guarantee of Rs.15 Lacs before the trial Court within four weeks. As and when such bank guarantee is furnished, the passport of the petitioner shall be returned back to him on his filing an undertaking that he will Page 5 of 7 R/SCR.A/3736/2014 ORDER submit the original passport with its certified photocopy to the investigating officer with his personal presence before the investigating officer once in a English calender month.
7. Thereby, petition is partly allowed to aforesaid extent. The petitioner has to furnish bank guarantee of Rs.15 Lacs and shall mark his presence with original passport and furnish certified copy of passport to the investigating officer once in every English calender month till further orders. Rule is made absolute to the aforesaid extent. Direct service permitted."
In light of the aforesaid, the present petition is filed by the petitioner.
(7) Considering the submissions made by learned advocate for the petitioner and learned Additional Public Prosecutor for the respondentState as well as order passed by this Court in Criminal Misc. Application No.3369 of 2014 forfeiture of amount of Rs.1,50,000/ is excessive and harsh. Considering the overall conduct of the petitioner there was no intention on the part of the petitioner to run away and to breach the condition permanently, however, at the same time, it was the duty of the petitioner to abide by the courts' order, that too conditions of bail which Page 6 of 7 R/SCR.A/3736/2014 ORDER were imposed while granting him anticipatory bail by the trial Court, in its true letters and spirit and therefore even while taking lenient view the petitioner should be saddled with penalty as well as costs of this petition.
(8) Accordingly, the petitioner is directed to pay penalty of Rs.5,000/. Learned Judicial Magistrate, First Class shall deduct Rs.5,000/ and is directed to return the remaining amount of Rs.1,45,000/ to the petitioner within seven days from the receipt of the copy of this order. Costs to the respondent is quantified at Rs.2,500/.
(9) With these observations, the petition stands allowed accordingly. Direct service permitted.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps]* Page 7 of 7