Gujarat High Court
Atulkumar Singh Rajput vs State Of Gujarat on 14 November, 2022
Bench: Samir J. Dave
R/SCR.A/2993/2022 ORDER DATED: 14/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2993 of 2022
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ATULKUMAR SINGH RAJPUT
Versus
STATE OF GUJARAT
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Appearance:
MR PM DAVE(263) for the Applicant(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
MR JK SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 14/11/2022
ORAL ORDER
1. Rule returnable forthwith,. Learned APP waives service of
notice of rule for and on behalf of the respondent-State.
2. By way of present application, applicant has requested to
delete/modify the conditions No. 3(d), 3(g), 4, 5 and 6
imposed by the learned Principal District and Sessions Judge,
Rajkot in the order dated 07.03.2022 of releasing the applicant
on regular bail in Criminal Misc. Application No. 452 of 2022.
3. Brief facts of the present case are as under:
3.1 The criminal complaint has been lodged against the
applicant for misappropriation of Rs. 55,00,000/- being CR
NO. 11193003211175 of 2021 with the Amreli City Police
Staton, for the offence punishable under Sections 406, 420 and
R/SCR.A/2993/2022 ORDER DATED: 14/11/2022
114 of the Indian Penal Code And Section 3 of the Gujarat
Protection of Interest of Depositors (In Financial
Establishments) Act 2003 and after arresting the applicant in
connection with this offence, applicant has approached the
learned District and Sessions Court Rajkot being Criminal
Misc. Application No. 452 of 2022 wherein the applicant was
released on bail with certain conditions and for
modifying/deleting conditions No. 3(d), 3(g), 4 and 5, the
applicant has approached this court by way of this application.
4. Heard learned advocates for the respective parties.
5. Learned advocate for the applicant has submitted that the
learned trial court has imposed the condition no.4 about bank
guarantee and thus it seems that the bail court has played a
role of recovery agent which the court is not entitled to do so.
That condition of providing bank guarantee of RS.
1,31,00,000/- is not only arbitrary but amounting to denial of
bail. Thus, the case of applicant in as much as grant of bail
based on Onerous condition deserves interference by this
Court. Ultimately, it was requested by learned advocate for the
applicant to allow present application.
6. On the other side, learned APP for the respondent-State
has strongly objected the submissions made by learned
advocate for the applicant and submitted that the applicant is
R/SCR.A/2993/2022 ORDER DATED: 14/11/2022
involved in serious offence punishable under the provisions of
Gujarat Protection of Interest of Depositors (In Financial
Establishments) Act 2003 and thus, the condition about bank
guarantee imposed by the learned trial court while releasing
on bail is proper and thus, learned trial court has not
committed any error in imposing such condition. That, the
applicant had not returned the amount of Rs. 55,00,000/-
though he is shown to have returned the maturity amount
during the intervening period from 2015 to 2018. That the
applicant has played major role and thus, the prayer of
modifying/deleting the condition as sought for may not be
granted and ultimately, it was requested by learned APP for the
respondent-State to reject present application.
7. Having heard learned advocate for the applicant and
learned APP for the respondent-State and considering the
averments made in the present application, it is undisputed
fact that the applicant was arrested in connection with CR NO.
11193003211175 of 2021 with the Amreli City Police Staton,
for the offence punishable under Sections 406, 420 and 114 of
the Indian Penal Code And Section 3 of the Gujarat Protection
of Interest of Depositors (In Financial Establishments) Act
2003, wherein he was released on bail by learned District and
Sessions Judge, Rajkot on 07.03.2022 in Criminal Misc.
R/SCR.A/2993/2022 ORDER DATED: 14/11/2022
Application No.452 of 2022, wherein certain conditions were
imposed, out of which, conditions No. 3(d), 3(g), 4, 5 and 6
are as under:
3(d) not leave the geographical limits of Gujarat State,
till the trial is over.
3(g) mark his presence on 5th of every month between
8.00 a.m. to 1.00. p.m. before Amreli City Police Station,
for two years from the date of this order.
4. The applicant to produce bank guarantee of Rs.
1,31,00,000/- (Rupees One Crore Thirty One lacs only)
in the name of Nazir, District Court, Rajkot, which is half
of the amount which is found to be due to be paid to the
investors by the applicant, within fifteen days of his
release from custody. However, the payment/
disbursement shall be subject to the provisions of G.P.I.D.
Act and/or final decision of the trial.
5. If the applicant fails to submit the afore mentioned
bank guarantee within fifteen days of his release from
custody, he shall surrender before the Jail Authority on
the sixteenth day and the Jail Authority shall report to
this court about his surrender. In case the applicant does
not surrender himself on the sixteenth day, the I.O. shall
make him surrender to the Jail Authority.
R/SCR.A/2993/2022 ORDER DATED: 14/11/2022
6. In case the I.O. fails to recover the amount of RRs.
1,31,00,000/- (Rupees One Crore Thirty One lacs only)
from the applicant, the bank guarantee shall stand
forfeited in favour of the complainant-State.
8. IIn case of Rashmikant R. Shah versus State of Gujarat
(Criminal Revision Application No. 92 of 2012) (reported in
2012(0) AIJEL-HC-227200), this court has observed that
condition to deposit the amount while granting bail to accused
amounts to passing a decree without giving opportunity to the
accused in his defence.
9. In another case of "Manoj Kumar Sood and Anr v/s. State
of Jharkhand" (Petition for Special Leave to Appeal (Cri.) No.
1274 of 2021, Hon'ble Supreme Court has held that it is well
settled by a plethora of decisions of this Court that criminal
proceedings are not for realization of disputed dues. It is open
to a Court to grant or refuse the prayer for bail, depending on
the facts and circumstance of the particular case. The factors to
be taken into consideration, while considering an application
for bail are, the nature of accusation and the severity of the
punishment in the case of conviction; the nature of the
materials relied upon by the prosecution; reasonable
apprehension of tampering with the witnesses or apprehension
of threat to the complainant or the witnesses; reasonable
R/SCR.A/2993/2022 ORDER DATED: 14/11/2022
possibility of securing the presence of the accused at the time
of trial or the likelihood of his abscondence; character
behaviour and standing of the accused; the larger interest of
the public or the State and similar other considerations. A
Criminal Court, exercising jurisdiction to grant
bail/anticipatory bail, is not expected to act as a recovery agent
to realise the dues of the complainant, and that too, without
any trial.
10. While considering the bail application, conditions to be
reasonable and if any harsh condition is imposed then it
amounts to rejection or denial of bail.
11. Thus, while considering the aspects of the aforesaid two
judgments and considering the over all facts of the present
case, this court deems it fit to accept the prayer of the applicant
to delete the conditions No.4, 5 and 6 imposed while releasing
the applicant on regular bail and not to accept the prayer of
the applicant to modify/delete the conditions No. 3(d) and
3(g).
12. Hence, present application stands allowed. The order
dated 07.03.2022 passed by learned Principal District and
Sessions Judge, Rajkot in Criminal Misc. Application No. 452 of
2022 stands modified and the conditions No. 4, 5 and 6
imposed in the order dated 07.03.2022 passed by learned
R/SCR.A/2993/2022 ORDER DATED: 14/11/2022
Principal District and Sessions Judge, Rajkot in Criminal Misc.
Application No. 452 of 2022 stands deleted and remaining
conditions shall remain the same.
Rule is made absolute to the aforesaid extent.
(SAMIR J. DAVE,J)
K. S. DARJI
