Gujarat High Court
Sahidbhai Aamadbhai Gigani vs State Of Gujarat on 23 November, 2022
Bench: Samir J. Dave
R/CR.MA/21392/2022 ORDER DATED: 23/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 21392 of 2022
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SAHIDBHAI AAMADBHAI GIGANI
Versus
STATE OF GUJARAT
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Appearance:
MOHAMADZAID I SAIYED(8411) for the Applicant(s) No. 1
MS SAHISTA S KHOKHAR(11116) for the Applicant(s) No. 1
MR KANVA ANTANI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 23/11/2022
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 and 4 imposed by the
learned Principal District and Sessions Judge, Rajkot in the
order dated 19.10.2022 of releasing the applicant on regular
bail in Criminal Misc. Application No. 2839 of 2022.
3. Brief facts of the present case are as under:
4. The accused persons are the partners of one scheme floated
in the name of 'Star Group" wherein all the partners have in
R/CR.MA/21392/2022 ORDER DATED: 23/11/2022
collusion with each other, introduced various interesting
schemes for investment and that is how, criminal complaint
has been lodged with the 'A' Division Rajkot City Police
Station, District Rajkot being CR No.11208050221109 of
2022 for the offence punishable under Sections 406, 409,
420, 120 and 114 of the Indian Penal Code and Sections 3
and 4 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.2839 of 2022 wherein
the applicant was released on bail with certain conditions
and for modifying/deleting conditions No. 3 and 4 the
applicant has approached this court by way of this
application.
5. Heard learned advocates for the respective parties.
6. Learned advocate for the applicant has submitted that the
learned trial court has imposed the condition no.3 about
depositing payment of Rs.32,65,800/- by way of cash with
Nazir, District Court, Rajkot i.e. half of the one third amount
which is found to be due to be paid to the investors and the
R/CR.MA/21392/2022 ORDER DATED: 23/11/2022
condition no.4 is that if the applicant fails to submit the
aforementioned cash amount within two weeks of his release
from custody, he shall surrender before the Jail Authority
on the fifteenth day and the Jail Authority shall report to the
Trial Court about his surrender. Thus, condition of
depositing amount of Rs.32,65,800/- in cash in 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.
7. 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
involved in serious offence punishable under the provisions
of Gujarat Protection of Interest of Depositors (In Financial
Establishments) Act 2003 and thus, the conditions 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 conditions. That the applicant alongwith
other six accused had launched "Star Group Inami Draw"
R/CR.MA/21392/2022 ORDER DATED: 23/11/2022
and used to lure investors through agents. It is true that one
of the co-accused Deviben @ Harshaben had committed
suicide on 01.06.2021. He also submitted that the present
applicant, his sister Asmaben, his brother-in-law Rajakbhai
and deceased Deviben @ Harsaben were actively involved in
the scheme. That Asmaben and deceased Deviben @
Harshaben used to purchase gold from the amo8unts of
investments, however, they have not returned investments
to the investors. The accused persons have also purchased
property from the investments amounts. Thus, the prayer of
modifying/deleting the conditions as sought for may not be
granted and ultimately, it was requested by learned APP for
the respondent-State to reject present application.
8. 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 'A' Division Police Station,
District Rajkot being CR No.11208050221109 of 2022 for
the offence punishable under Sections 406, 420, 120B and
114 of the Indian Penal Code and Sections 3 and 4 of the
Gujarat Protection of Interest of Depositors (In Financial
R/CR.MA/21392/2022 ORDER DATED: 23/11/2022
Establishments) Act 2003 wherein he was released on bail
by learned District and Sessions Judge, Rajkot on
19.10.2022 in Criminal Misc. Application No.2839 of 2022,
wherein certain conditions were imposed, out of which,
conditions no. 3 and 4 are as under:
"3. The applicant is directed to deposit Rs.32,65,800/- (Rupees
Thirty Two Lakhs Sixty Five Thousand Eights Hundred only) by
way of cash with Nazir, District Court, Rajkot i.e. half of the one
third amount which is found to be due to be paid to the investors
by the applicant, within Two Weeks 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.
4. If the applicant fails to submit the aforementioned cash amount
within two weeks of his release from custody, he shall surrender
before the Jail Authority on the fifteenth day and the Jail
Authority shall report to this court about his surrender. In case the
applicant does not surrender himself on the fifteenth day, the I.O.
shall make him surrender to the Jail Authority."
9. In 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.
R/CR.MA/21392/2022 ORDER DATED: 23/11/2022
10. 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 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.
R/CR.MA/21392/2022 ORDER DATED: 23/11/2022
11. 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.
12. 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 modify/delete the conditions No.2,3 and 4
imposed while releasing the applicant on regular bail.
13. Hence, present application stands allowed. The order dated
19.10.2022 passed by learned Principal District and
Sessions Judge, Rajikot in Criminal Misc. Application No.
2839 of 2022 stands modified and the conditions No.3 and 4
imposed in the order dated 19.10.2022 passed by learned
Principal District and Sessions Judge, Rajikot in Criminal
Misc. Application No.2839 of 2022 stands deleted and
remaining conditions shall remain the same.
14. Rule is made absolute to the aforesaid extent.
(SAMIR J. DAVE,J)
MEHUL B. TUVAR
