Gujarat High Court
Kishorbhai Babubhai Dobariya vs State Of Gujarat on 2 January, 2023
Bench: Samir J. Dave
R/CR.MA/23799/2022 ORDER DATED: 02/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23799 of 2022
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KISHORBHAI BABUBHAI DOBARIYA
Versus
STATE OF GUJARAT
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Appearance:
MS AISHWARYA H CHAUDHARY(11539) for the Applicant(s) No. 1
MR RC KODEKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 02/01/2023
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 02.11.2022 of releasing the applicant on regular
bail in Criminal Misc. Application No. 3153 OF 2022.
3. heard learned advocates for the respective parties.
4. Learned advocate for the applicant has submitted that the
learned trial court has imposed the condition no.3 about
depositing the cahs amount, out of which, the applicant has
already deposited Rs. 5 lacs on 08.11.2022, but now the
R/CR.MA/23799/2022 ORDER DATED: 02/01/2023
applicant is not able to manage such a huge amount. That
condition of depositing such huge cash amount 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.
5. 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 condition about
depositing amount as 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 has lured the investors and neither money nor
interest were paid to them. That the applicant has played major
role in the offence 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.
6. Having heard learned advocate for the applicant and
R/CR.MA/23799/2022 ORDER DATED: 02/01/2023
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.
11208053220854 of 2022 registered with Rajkot Taluka
Police Station, District Rajkot for the offence punishable under
Sections 406, 420, 120B and 114 of the Indian Penal Code and
Section 3 and 4 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 02.11.2022 in Criminal Misc. Application No.3153
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. 10,75,000/-
(Rupees Ten Lakhs Seventy Five Thousand only) by way of
cash with Nazir, District Court, Rajkot ie., half of the
amount which is found to be due to be paid to the
investors by the applicant as per the FIR. The applicant
shall initially deposit sum of Rs. 5,00,000/- (Rupees Five
Lacs only) within a period of one week from the date of
his release and shall deposit the remaining amount of Rs.
5,75,000/- within a period of 45 days from the date of
his release. However, the payment/disbursement shall be
subject to the provisions of GPID Act and/or final
R/CR.MA/23799/2022 ORDER DATED: 02/01/2023
decision of the trial.
4. If the applicant fails to submit the afore mentioned
cash amount within stipulated time of his release from
custody, he shall surrender before the jail authority on
the 46th day of his release and the jail authority shall
report to this court about his surrender. In case the
applicant does not surrender himself on the 46 th day, the
IP shall make him surrender to the jail authority.
7. It appears from the record that the applicant is not in a
condition to fulfill condition about deposited entire cash
amount and thus, he approached this court for
modification/deletion of the conditions No. 3 and 4 imposed
while releasing the applicant on bail.
8. 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.
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
R/CR.MA/23799/2022 ORDER DATED: 02/01/2023
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.
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
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case, this court deems it fit to accept the prayer of the applicant
to modify/delete the conditions No. 3 and 4 imposed while
releasing the applicant on regular bail.
12. Hence, present application stands allowed. The order
dated 02.11.2022 passed by learned Principal District and
Sessions Judge, Rajkot in Criminal Misc. Application No. 3153
of 2022 stands modified and the conditions No. 3 and 4
imposed in the order dated 02.11.2022 passed by learned
Principal District and Sessions Judge, Rajkot in Criminal Misc.
Application No. 3153 of 2022 stands deleted and remaining
conditions shall remain the same.
13. Time and again, this Court is observing that learned
Sessions Judge should not have impose condition of depositing
the amount while granting bail to the accused. Thus, it is
desirable for the learned Sessions Court concerned to take care
of this situation.
Rule is made absolute to the aforesaid extent.
(SAMIR J. DAVE,J)
K. S. DARJI
