[S. 439 CrPC] HC reiterates Courts cannot impose conditions for bail that would amount to exercising powers under a different enactment

 

The Gujarat High Court recently comprising of a bench of Niral R. Mehta held that courts cannot impose any conditions when exercising their power under Section 439 of the Criminal Procedure Code (CrPC) that amounts to exercising powers under a different enactment. (KIRANKUMAR VANMALIDAS PANCHASARA v/s STATE OF GUJARAT) 

 Facts of the case

An FIR was registered against the the petitioner for offences punishable under Sections 406, 420, 114 and 120(B) of the Indian Penal Code, 1860 and Section 3 of the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 following with the arrest of the petitioner and an application under Section 439 of the Cr.P.C. was filed by the petitioner for seeking regular bail, in furtherance of the aforesaid FIR. 

The same was allowed by the Trial Court with certain conditions. The two conditions in contention were that first that within two weeks of his release from custody, the applicant was to produce bank guarantee of Rs.33,06,695/-. The second condition stated that the bank guarantee shall stand forfeited in favour of the complainant-State, in case the I.O. fails to recover the amount.

By way of this Special Criminal Application under Articles 226 and 227 of the Constitution of India r/w Sections 437 and 439 of the Cr.P.C., the petitioner has approached this Court for quashing and setting aside the impugned direction issued by the Designated Court of Principal District and Sessions Judge, Rajkot. 

Issue before the Court 

Whether the Court, while exercising its powers under Section 439 of Cr.P.C., could impose such a condition which amounts to exercising powers envisaged under another enactment i.e., Section 3 of the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003.

Courts Observation and Judgment 

The Court perused the 2003 Act and observed that it has a built-in mechanism that allows for the competent authorities to take action against a financial establishment, following which the designated court can order asset attachment, realise money from assets, or cancel the attachment order.

The bench further observed that the designated court has the ultimate power of attachment under the 2003 Act and that it will exclusively have the jurisdiction to pass any orders under section 10(6) of the 2003 Act.

The Court then proceeded to delete the conditions regarding to the bank guarantee and forfeiture of the same in case of default after ruling that the conditions set by the trial court under Section 439 CrPC are incorrect.

The bench remarked, "Keeping in mind the aforesaid legal provisions, more particularly if the Condition No.6 imposed by the learned Sessions Judge, is read over, the same is completely beyond jurisdiction of the learned Sessions Court while exercising powers under Section 439 of the Cr.P.C. I say so because the same is amounting to usurping powers envisaged under Section 10(6) of the Act of 2003, that too without following any procedure as prescribed."

The bench allowing the application remarked, "In view of above, the present Special Criminal Application is hereby allowed in part. The order dated 22.4.2022 passed by the learned Principal District and Sessions Judge (Designated Court), Rajkot in Criminal Misc. Application No.503 of 2022 is hereby modified to the extent that so far as condition No.4 is concerned, the petitioner shall furnish running bank guarantee of Rs.33,06,695/- within a period of two months from today and the Condition No.6 is hereby deleted. Rule is made absolute to the aforesaid extent."

 

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(With input from news agency language)

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