Gujarat High Court
Nitin Uppal vs State Of Gujarat on 20 August, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
R/CR.MA/11545/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11545 of 2020
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NITIN UPPAL
Versus
STATE OF GUJARAT
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Appearance:
GUPTA LAW ASSOCIATES(9818) for the Applicant Nos. 1,2
PARITOSH R GUPTA(7583) for the Applicant Nos. 1,2
MS JIRGA JHAVERI, APP for the Respondent No. 1
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 20/08/2020
ORAL ORDER
1. Heard learned advocate Mr.Paritosh R. Gupta for the applicants and learned Additional Public Prosecutor Ms.Jirga Jhaveri for the respondent - State through video conference.
2. Rule. Learned Additional Public Prosecutor Ms.Jhaveri waives service of rule on behalf of respondent - State.
3. By way of the present petition, the applicants have prayed for the following reliefs.
a) YOUR LORDSHIP may be pleased to modify the condition no.2 from the Order dated 08.05.2020 passed by the Hon'ble Sessions Court, Surat in Criminal Misc.Page 1 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021
R/CR.MA/11545/2020 ORDER Application No.1669 of 2020 and allow the applicants to mark their presence through video conferencing or alternatively, at Udyog Vihar Police Station, Gurgaon, Haryana, in the interest of justice.
b) YOUR LORDSHIP may be pleased to delete condition nos.7 and 8 from the order dated 08.05.2020 passed by the Hon'ble Sessions Court, Surat in Criminal Misc. Application No.1669 of 2020;
c) YOUR LORDSHIP may be pleased to direct the concerned police authorities to record the statements of the applicants through video conferencing;
d) Pending the admission, hearing and final disposal of this application, YOUR LORDSHIP may be pleased to grant stay of operation of the order of the Ld. Sessions Judge inasmuch as the same relates to condition nos.2, 7 and 8 of the order dated 08.05.2020 in the interest of justice.
e) Be pleased to grant such other and further relief(s), as are deemed fit, in the interest of justice;
4. The brief facts of the case are that complaint is lodged against the applicants being IC.R. No.305 of 2018 dated 29th August 2018 under Sections 406, 420, 504, 506(2) and 114 of the Indian Penal Code. The applicants have also preferred Criminal Misc. Application no.21737 of 2018 under Section 482 for quashing of the said complaint.
Page 2 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021R/CR.MA/11545/2020 ORDER 4.1 It appears that the applicants thereafter, preferred anticipatory bail application being
Criminal (Anticipatory) Misc. Application No.1669 of 2020 before the Court of 15th Additional Sessions Judge, Surat, who by order dated 8th May 2020 granted anticipatory bail to the applicants by passing the following order.
"- ORDER -
Present anticipatory bail application is allowed.
The applicant/accused person namely (1) Nitin Uppal Age: 40 Years, Gender
- Male, (2) Naresh Uppal Age:68, Gender - Male, Both having address at : S.S. International, Plot No.115, Phase4, Udyog Vihar, Gurgaon, Haryana are ordered to be released on bail in the event of his arrest in connection with the F.I.R. registered at Salabatpura Police Station - Surat District - I - Crime Register No.305/2018 under Sections 406, 420, 504, 506(2) and 114 of the IPC on executing personal bond in the sum of Rs.25,000/ (Rupees Twenty Five thousand only) with one solvent surety of like amount, subject to following conditions that the applicant shall :
Conditions : (1) cooperate with the investigation and make himself available for interrogation whenever required; (2) remain present at the concerned Police Station on 26052020 and 27052020 from 11.00 a.m. To 3.00 p.m. And thereafter shall mark his presence before the Page 3 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021 R/CR.MA/11545/2020 ORDER police station once during First Week of every English Calendar month till the filing of charge sheet.
(3) The applicants / accused must not to take undue advantage of his liberty or abuse his liberty and must not involve in any offence;
(4) Not to act in any manner injurious to the interest of the prosecution;
(5) Not to temper with evidence or
influence the witnesses
concerned;
(6) Furnish the address of his
permanent and local residence to the Investigating Officer and also to the Court at the time of execution of bond and shall not change the resident without prior permission of the Ld. Trial Court;
(7) Not to leave India without prior permission of the Ld. Trial Court;
(8) Surrender his passport, if any, before the Investigating Officer within a week and if applicants are not having passport, the appropriate affidavit must be filed to the Ld. Trial Court;
(9) To cooperate with the investigating and make himself available for interrogation whenever required. It would be open to the Investigating Officer to file an application for remand, if he considers it just and proper and the concerned Magistrate would decide it on merits.
Page 4 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021R/CR.MA/11545/2020 ORDER Copy of the order to be furnished concerned police station and concerned Ld. Trial Court.
Pronounced in open Court today on the 8th of May, 2020."
4.2 It is the case of the applicants that the applicants could not remain present on 26th May 2020 and 27th May 2020 as per the condition no.2 of the aforesaid order. The applicants preferred Criminal Misc. Application no.2830 of 2020 before the Court below with a prayer to modify the condition no.2 and also to delete and remove the condition nos.7 and 8, which provides for condition that not to leave India without the permission of the trial Court and surrender the passport, if any, before the Investigating Officer.
4.3 The trial Court, by order dated 3rd June 2020 extended the anticipatory bail for further period till 27th July 2020 with the same condition levied as per the order dated 8th May 2020 in Criminal Misc. Application no.1669 of 2020. With regard to the condition nos.7 and 8 in the order of granting anticipatory bail, the trial Court refused to delete such conditions considering the alleged offences against the applicants. The trial Court also recorded that the investigation is in very crucial stage and investigation is not over and therefore, rejected the prayer of the applicants for deleting Page 5 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021 R/CR.MA/11545/2020 ORDER the conditions nos.7 and 8.
4.4 It appears that the applicants thereafter, preferred Criminal Misc. Application no.3666 of 2020 before the trial Court with the same prayers to modify the condition no.2 and also to delete and remove the conditions nos.7 and 8. The trial Court by order dated 24th July 2020 rejected the said application having identical prayers as were made earlier also by the applicants wherein the trial Court considered the extension of anticipatory bail to the applicants for the period of four weeks. In the order dated 24th July 2020, the trial Court has observed as under : "4. It appears that earlier the applicants were granted anticipatory bail and after that the applicants had given application to modify the condition which was modified vide Order Below No.2830/2020.
In the present application, the applicants have prayed that applicant No.2 is old age and has some illness and it is very difficult to travel in a Covid19 situation. But he has not produced any documentary evidence to prove this fact so, the argument of Ld. Advocate for the applicants cannot be accepted. Further, he has prayed to allow the applicants' presence on video conferencing. But, the case is very crucial stage and the presence of the applicants is very necessary at this stage and the Court cannot allow the applicants' presence on video conferencing. Now, Page 6 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021 R/CR.MA/11545/2020 ORDER the Central Government has released the interstate movement and the railways and airlines are also operating so, it is possible for them to travel to Surat and mark their presence.
5. It appears that earlier the applicants were granted anticipatory bail with a condition No.7 "Not to leave India without prior permission of the Ld. Trial Court and condition no.8 "Surrender his passport if any before the Investigating Officer within a week and if applicants are not having passport, the appropriate affidavit must be filed to the Ld. Trial Court". However, the applicants pray to delete or remove the both conditions. It appears that it is a serious offence of Sec. 406, 420, 504, 506(2) and 114 of IPC and the investigation is in very crucial stage and the investigation is not over if the Court removes or delete the condition nos.7 and 8 the applicants may be flee from India. The availability of the applicants are very important for this case. In view of the facts stated above, this Court cannot delete or remove the condition Nos.7 and 8 in the interest of justice and hence, the argument of the applicants' advocate is not accepted.
ORDER The Criminal Misc. Application No.4666/2020 is hereby rejected.
Yadi be sent to the Trial Court as well as concerned police station.
Page 7 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021R/CR.MA/11545/2020 ORDER Pronounced in open Court today on this 24th day of July, 2020."
4.5 Being aggrieved by the aforesaid order dated 24th July 2020, the applicants have filed this application with the same prayers of modification of the condition no.2 and deletion of condition nos.7 and 8 of the order granting anticipatory bail dated 8 th May 2020.
5. Learned advocate Mr.Paritosh Gupta appearing for the applicants submitted that the applicants are residing at Haryana and applicant no.2 is aged about 70 years and therefore, it is not advisable for him to travel to Surat to abide by the condition imposed by the trial Court in the order granting anticipatory bail. He further submitted that the offences alleged are of civil nature as there are business transactions between the complainant and the applicants and the applicants are ready and willing to cooperate with the prosecution by furnishing all details if they are permitted to appear through video conference in this Covid19 pandemic situation.
6. With regard to the deletion of condition nos.7 and 8 of the order dated 8th May 2020 granting anticipatory bail, learned advocate Mr.Gupta submitted that though the applicants are not likely to leave India, they are not agreeable to such conditions in view of the offences alleged in the Page 8 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021 R/CR.MA/11545/2020 ORDER F.I.R. with regard to the business transactions. He relied upon the following decisions :
(1) In case of Munish Bhasin and others Vs. State (Government of NCT of Delhi) and another reported in (2009) 4 SCC 45 with regard to conditions imposed while granting anticipatory bail and submitted that the Court is not justified in imposing conditions.
It was submitted that in the said case, the Court imposed the condition of awarding maintenance to the wife and child while granting the anticipatory bail and Supreme Court deleted such conditions as such conditions cannot be the conditions for granting pre arrest bail. He relied upon the following observations made by the Supreme Court :
"11. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in subsection (2) of Section 438 and subsection (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 Page 9 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021 R/CR.MA/11545/2020 ORDER 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."
(2) In case of Sumit Mehta Vs. State (NCT of Delhi) reported in (2013) 15 SCC 570, wherein the Supreme Court held that the conditions should be reasonable, not onerous and should effectuate object of imposing conditions, having regard to the facts and circumstances. He relied upon the following observations of the Supreme Court :
"11. While exercising power under Section 438 of the Code, the Court is duty bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police. For the same, while granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, Page 10 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021 R/CR.MA/11545/2020 ORDER which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised with utmost restraint.
12. The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution.
13. We also clarify that while granting anticipatory bail, the Courts are expected to consider and keep in mind the nature and gravity of accusation, antecedents of the applicant, namely, about his previous involvement in such offence and the possibility of the applicant to flee from justice. It is also the duty of the Court to ascertain whether accusation has been made with the object of injuring or humiliating him by having him so arrested. It is needless to mention that the Courts are duty bound to impose appropriate conditions as provided under sub section (2) of Section 438 of the Code.
15. The words "any condition" used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the Page 11 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021 R/CR.MA/11545/2020 ORDER pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed."
7. Relying upon the above decisions, it was submitted that the trial Court could not have imposed condition nos.7 and 8 asking the applicants not to leave India without prior permission and surrender the passports, if any.
8. He therefore, prays that the application be allowed by modifying the condition no.2 and deleting the condition nos.7 and 8.
9. On the other hand, learned Additional Public Prosecutor Ms.Jhaveri submitted that the trial Court after taking into consideration the entire facts of the case as well as the investigation paper submitted before it has laiddown the conditions of asking the applicants to remain present before the Investigating Officer and also imposed conditions that not to leave India without prior permission of trial Court and surrender passport, if any. She further submitted that she also relies upon the decision of Sumit Mehta (supra) with regard to imposition of conditions which prescribed that the trial Court while imposing the conditions of prearrest bail, is required to take into consideration the factual scenario, facts of the case, as well as, the circumstances in which Page 12 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021 R/CR.MA/11545/2020 ORDER offences are alleged and after taking into consideration the entire case, the condition is required to be imposed.
10. Having considered the submissions made by both the sides, it appears that the applicants are residing at Haryana whereas the complaint is lodged at Surat. The applicants have convinced the trial Court to extend the anticipatory bail for the first time as there were restrictions on travelling and accordingly, trial Court has extended anticipatory bail for four weeks asking the applicants to remain present on 27th July 2020, but it appears that the applicants are adamant to appear before the Investigating Officer as per the order passed by the trial Court. It is necessary for the Investigating Officer to secure the presence of the applicants for further investigation in view of the offences alleged in the complaint. When the matter is subjudice before this Court in the quashing proceedings, it would not be proper to elaborate upon the averments made in the complaint with regard to the alleged offences.
11. Taking into consideration the overall facts of the case and in view of the aforesaid decisions rendered by the Supreme Court, this Court is of the opinion that so far as the applicant no.2 is concerned, who is aged about 70 years, he can be permitted to appear through video conference in order to comply with the condition no.2 of the order passed Page 13 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021 R/CR.MA/11545/2020 ORDER by the trial Court granting anticipatory bail.
12. With regard to deletion of condition nos.7 and 8 that not to leave India and surrender the passport, if any, such conditions are necessary in the facts of the case and the applicant is not going to be prejudiced in any manner whatsoever for complying with such conditions. The trial Court has therefore, rightly rejected the prayer of the applicants for deletion of condition nos.7 and 8 granting anticipatory bail.
13. The Supreme Court in case of Sumit Mehta (supra) has categorically held that words 'any condition' used in the provision is required to be imposed as a reasonable condition acceptable in the facts permissible in the circumstances effective and in the pragmatic sense and should not defeat the order of grant of bail. Considering the condition nos.7 and 8, it cannot be said that the condition defeats the order of grant of bail and such conditions are reasonable conditions acceptable in the facts, permissible in the circumstances, effective and in pragmatic sense in the backdrop of the averments made in the complaint with regard to the alleged offences under Sections 406, 420 and 114 of the Indian Penal Code. It is also made clear that the facts of the case are not recorded here so as not to prejudice either side while considering the modification of conditions.
Page 14 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021R/CR.MA/11545/2020 ORDER
14. In view of the above, the condition no.2 imposed by the order dated 8th May 2020 passed by the trial Court while granting the anticipatory bail to the applicants is modified to the effect that the applicant no.2 - Naresh Uppal, aged about 70 years is permitted to appear through video conference before the Investigating Officer as may be intimated by the Investigating Officer to him. The applicant no.2 shall also furnish his details with regard to the phone number and the email so as to enable the Investigating Officer to contact him in order to appear through video conference. So far as rest of the order passed by the trial Court qua conditions no.7 and 8 is concerned, the same is not interfered with.
15. So far as the condition no.2 of the order dated 8th May 2020 requiring the applicant to remain present before the Investigating officer is concerned, the same is also modified qua applicant no.1 to the effect that the applicant no.1 shall remain present before the Investigating Officer on 27th August 2020 between 11:00 a.m. to 2:00 p.m.
16. With the aforesaid observations and directions, the Criminal Misc. Application stands disposed of.
(BHARGAV D. KARIA, J.) AMAR RATHOD/RAGHUNATH NAIR Page 15 of 15 Downloaded on : Thu Feb 25 15:56:27 IST 2021