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Gujarat High Court
Judgename :H.K.RATHOD
Kalpesh Dineshchandra Jariwala - Appellant
Versus
STATE - Respondent
CRI.M.A. 7606 of 2002
Decided On : 01/30/2003
Constitution of India - Article 19 - Indian Penal Code,1860 - Sections 120-B,467,406,302,96, 420, 468, 471 and 506 - Criminal Procedure Code - Section 439 (2) - Learned Senior Advocate - Learned advocate on behalf of the petitioner and learned Public Prosecutor appearing on behalf of the respondent - Investigating officer is also personally present before this Court as well as present General Manager of Co-op. Bank Limited Mr. A. N. has also remained personally present before this Court - Court would like to refer and quote certain following relevant observations of the Court concerning the issue involved in this group of this petition as under - Code is cryptic on this topic and the Court prefers to be tacit be the order custodial or not - And yet the issue is one of liberty justice public safety and burden on the public treasury all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process - As chamber Judge in the summit Court I have to deal with this case- flow ad hoc response to the docket being the flickering candle light - So it is desirable that the subject disposed of on basic principle not improvised brevity draped as discretion - Personal liberty deprived whom bail is value of our constitutional system recognised under that curial power to negate it is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community - To glamorize impressionistic orders as discretionary may on occasions make a gamble decisive of a fundamental right - Petitioner has also pointed out that now the charge sheet is already filed against the petitioner and there is no scope of creating any hurdle in the way of investigation and the petitioner has all throughout the course of investigation has cooperated with the Investigating agency and there is no scope of tampering with any evidence or any such witnesses - Court has failed to appreciate the fact that securing loans of the bank and handing over possession of valuable properties speaks of bonafide of the petitioner It is also submitted that the petitioner is only bread winner in the family and pioneer of the said Co-operative Bank limited right from inception and therefore - Help, prosecution witnesses or complainant in any manner maintain law and order and should co-operate the investigating officers not act in a manner injurious to the interest of the prosecution mark his presence before D. C. B. Police Station on every Sunday between P. M. for initial three months from the date of enlargement on bail and thereafter mark his presence before the aforesaid police station on every day of each english Calender Month regularly till further order - Furnish the address of his residence to the I. O. and also to the court at the time of execution of the bond and shall not change the residence without prior permission of this Court surrender his Passport if any to the lower Court within a week; [h] not enter into the local/revenue limits of area where said Shree Co- op. Bank Ltd. is situate without prior permission of this Court but for attending the Court related proceedings in connection with this case he will be free to enter the limits for a period to the extent necessary and will leave the limits thereafter soon the case is adjourned over and above usual conditions of bail, the petitioner shall abide the following conditions - On the basis of voluntary statement made by learned Senior advocate it is directed to the petitioner to file same and similar two undertakings before this Court which was filed by the petitioner before the Sessions Court at on date within a week from the date on enlarging on bail - On the basis of voluntary statement made by learned Senior advocate Mr. N. D - It is further directed to the petitioner to pay an amount to Shree Co-op. Bank limited on or before and shall further pay on or before - On the basis of the voluntary statement made by learned Senior advocate Mr. upon instructions it is directed to the petitioner to go on paying every month from onwards before Co-op. Bank Limited and shall deposit such amount up to day of each month before the said Bank as per undertakings before this Court to be filed by the petitioner as per condition without prejudice to his right of defence and any other right/s which are available under the Law - Petitioner shall also file an undertaking within a week from the date of enlarging on bail stating that the petitioner will put his sincere efforts to increase the repayment as per condition - In the event of non-compliance of the undertakings that may be filed by the petitioner as per condition above and breach of any of the directions issued by this Court the bail granted by this court in of the petitioner will stand cancelled automatically and/or liberty to the respondent to move this court seeking cancellation of bail granted in favour of the petitioner - If breach of any of the above conditions is committed, the Sessions judge at will be free to issue warrant or take appropriate action in the matter - Bail before the lower Court having jurisdiction to try the case - Rule in all nine petitions, is made absolute - Direct service is permitted - Ordered Accordingly.
( 1 ) HEARD learned Senior Advocate n. D. Nanavati for Mr. Tushar Mehta, learned advocate on behalf of the petitioner and learned Public Prosecutor mr. A. D. Oza with learned APP mr. N. D. Gohil appearing on behalf of the respondent - State. The Investigating officer Mr. Ajay V. Gakhar is also personally present before this Court as well as present General Manager of Shree vikas Co-op. Bank Limited Mr. A. N. Thakkar has also remained personally present before this Court.
( 2 ) RULE. Learned Public Prosecutor mr. A. D. Oza waives service of Rule on behalf of the respondent - State in all these nine matters.
( 3 ) AT the out set, this Court would like to refer and quote certain following relevant observations of the Apex Court concerning the issue involved in this group of this petition as under :"8. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As chamber Judge in the summit Court I have to deal with this uncanalised case- flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived whom bail is value of our constitutional system recognised under art. 21 that curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble, decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental; suffering lawful eclipse only in terms of "procedure established by law". The last four words of Art. 21 are the life of that human right. 17. The significance and sweep of art. 21 make the deprivation of liberty ephemeral or enduring, a matter of grave concern and permissible only when the law authorizing it is reasonable, even handed and geared to the goals of community good and State-necessity spelt out In Article 19. Reasonableness postulates, intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose, but for the bifocal interests of justice to the individual involved and society affected. "[extracted from the case of BABU singh V. STATE OF U. P. reported in air 1978 SC 527] the meaning of bail given in various judicial Dictionaries and since these matters pertain the bail, meaning of bail given in Judicial Dictionaries defined are referred as under: "bail meaning. Websters 7th New judicial Dictionary defines "bail" as follows :"bail is a security given for the due appearance of a prisoner in order to obtain his release from imprisonment; a temporary release of a prisoner upon security; one who provides bail. "whartons Law Lexicon defines "bail" to mean:"to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a date at a certain place, which security is called bail because the person arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required in order that he may be safely protected from prison to which if they have, if they fear his escape, etc. , the legal power to deliver him. " in Strouds Judicial Dictionary, 5th ed. , the word "bail" is defined as follows : "baile is when a man is taken or arrested for felony, suspicion of felony, indicated of felony or any such case, so that he is restrained of his liberty. And, being by law baileable offereth surety to those which have authority to baile him, which sureties are bound for him to the Kings use in a certain summe of money, or body for body, that he shall appeare before the Justices of
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