Gujarat High Court
Nikulsinh Lavusinh Dabhi vs State Of Gujarat on 15 September, 2023
Bench: Nirzar S. Desai
NEUTRAL CITATION
R/CR.MA/15339/2023 ORDER DATED: 15/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15339 of 2023
==========================================================
NIKULSINH LAVUSINH DABHI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS DIMPLE A DHAMANI(12061) for the Applicant(s) No. 1
MR JK SHAH, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 15/09/2023
ORAL ORDER
1. This is successive anticipatory bail application
under Section 438 of the Code of Criminal Procedure,
1973 after withdrawal of earlier application for
anticipatory bail being Criminal Misc. Application
No.7784 of 2023, which was withdrawn by the applicant
on 06.07.2023.
2. Considering the fact that at that point of time,
the earlier application for anticipatory bail being
Criminal Misc. Application No.7784 of 2023 was argued
by another advocate and today with change of
advocate, learned advocate Mr. Bharda appearing for
the applicant, could not point out any change of
circumstances. However, he submits that the present
applicant is ready and willing to deposit a sum of
Rs.5 lakh.
NEUTRAL CITATION
R/CR.MA/15339/2023 ORDER DATED: 15/09/2023
undefined
3. However, considering the fact that the Hon'ble
Supreme Court has very recently disapproved the
practice of permitting the applicant to deposit some
amount in private dispute. In the case of Ramesh
Kumar v. The State of NCT of Delhi, reported in 2023
LiveLaw (SC) 496, whereby, in para 26 of the
judgment, the Hon'ble Supreme Court observed as
under:
"26. Law regarding exercise of discretion while
granting a prayer for bail under section 438 of
the Cr. PC having been authoritatively laid
down by this Court, we cannot but disapprove
the imposition of a condition of the nature
under challenge. Assuming that there is
substance in the allegation of the complainants
that the appellant (either in connivance with
the builder or even in the absence of any such
connivance) has cheated the complainants, the
investigation is yet to result in a charge-
sheet being filed under section 173(2) of the
Cr. PC, not to speak of the alleged offence
being proved before the competent trial court
in accordance with the settled procedures and
the applicable laws. Sub-section (2) of section
438 of the Cr. PC does empower the high court
or the court of sessions to impose such
conditions while making a direction under sub-
section (1) as it may think fit in the light of
the facts of the particular case and such
direction may include the conditions as in
clauses (i) to (iv) thereof. However, a reading
of the precedents laid down by this Court
referred to above makes the position of law
clear that the conditions to be imposed must
not be onerous or unreasonable or excessive. In
the context of grant of bail, all such
conditions that would facilitate the appearance
of the accused before the investigating
officer/court, unhindered completion of
NEUTRAL CITATION
R/CR.MA/15339/2023 ORDER DATED: 15/09/2023
undefined
investigation/trial and safety of the community
assume relevance. However, inclusion of a
condition for payment of money by the applicant
for bail tends to create an impression that
bail could be secured by depositing money
alleged to have been cheated. That is really
not the purpose and intent of the provisions
for grant of bail. We may, however, not be
understood to have laid down the law that in no
case should willingness to make payment/deposit
by the accused be considered before grant of an
order for bail. In exceptional cases such as
where an allegation of misappropriation of
public money by the accused is levelled and the
accused while seeking indulgence of the court
to have his liberty secured/restored volunteers
to account for the whole or any part of the
public money allegedly misappropriated by him,
it would be open to the concerned court to
consider whether in the larger public interest
the money misappropriated should be allowed to
be deposited before the application for
anticipatory bail/bail is taken up for final
consideration. After all, no court should be
averse to putting public money back in the
system if the situation is conducive therefor.
We are minded to think that this approach would
be in the larger interest of the community.
However, such an approach would not be
warranted in cases of private disputes where
private parties complain of their money being
involved in the offence of cheating."
4. In view of the aforesaid observations as well as
considering the fact that there is no change of
circumstances which even learned advocate Mr. Bharda
could point out and as it is well settled that in
absence of change of circumstances, successive bail
application cannot be entertained, the present
application for anticipatory bail is required to be
NEUTRAL CITATION
R/CR.MA/15339/2023 ORDER DATED: 15/09/2023
undefined
dismissed and accordingly it is dismissed.
(NIRZAR S. DESAI,J)
LAVKUMAR J JANI
