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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Aarif Mohammadsharif Pipadwala - Appellant
Vs.
State of Gujarat - Respondent
Special Criminal Application No. 2624 of 2018
Decided On : 21-06-2018
(A) Criminal Procedure Code, 1973 – Section 437 – Indian Penal Code, 1860 – Sections 406, 420, 467, 468, 471, 34 & 114 – The present application is filed challenging the bail granted by Metropolitan Magistrate to the accused whose bail granted by Sessions court beforehand was terminated as the accused failed to fulfill the terms and conditions of the bail granted by Sessions court – After the bail got terminated the accused avoided arrest and took off – The magistrate then had to issue a non-bailable warrant against accused – The accused then managed to tackle the arrest in lieu of warrant for a time as long as 6 years – Finally when the accused got arrested with extra efforts from police after a long time of 6 years the accused was granted bail again by the magistrate – The fact that bail of the accused was cancelled first on the premises of non compliance of terms and conditions, even after that the accused managed to dodge the arrest for 6 years against non-bailable warrant issued against him, somehow managed to be let out on bail again is outrageous and clear disrespect of law – The Magistrate did not took consideration of the said fact while granting the bail again – It was held that Magistrate had no jurisdictional power to grant bail to accused when the terms and conditions of bail granted by the Session Court were not fulfilled – Hence the impugned order by Metropolitan Magistrate stands to be quashed.
(B) Criminal Procedure Code, 1973 – Sec. 437 – Indian Penal Code, 1860 – Secs. 406, 420, 467, 468, 471, 34 & 114 – The Sec. 437(1) of Cr.P.C. has clearly put a bar on Magistrate to grant bail to any accused if the Magistrate has reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life – However the Magistrate can grant bail if the matter concerned falls in any of the excepted categories – While observing the decision made by Supreme Court in Gurcharan Singh v. State (Delhi Admin.), AIR 1978 SC 179, the court said that until the case of granting bail to the accused fails to fall under the proviso mentioned in Sec. 437, there is no power with magistrate to grant bail to the accused – The Magistrate failed to mention any reasonable ground on which magistrate is awarding bail to the accused in matter that maybe punishable with death or imprisonment of life – It was held that even though the magistrate has power to grant imprisonment for upto 10 years in certain cases, it does not mean that a bail can be granted by the magistrate in offences that can lead to punishment of death or imprisonment of life – The Magistrate should also not be granting the bail in cases in which punishment may be only to imprisonment for life and not death.
J.B. Pardiwala, J.
By this application under Article 227 of the Constitution of India, the applicant, one of the victims, calls in question the legality and validity of the order dated 14th March 2018 passed by the Additional Chief Metropolitan Magistrate, Court No.13, Ahmedabad below Exhibit-11 in Criminal Case No.1849 of 2011, by which the Metropolitan Magistrate ordered release of the respondent No.2 - original accused on bail on the accused being produced before the Metropolitan Magistrate on bring arrested pursuant to a non-bailable warrant issued in connection with the offences punishable under Sections 406, 420, 467, 468 and 471 read with 34 and 114 of the Indian Penal Code.
2. The facts giving rise to this application may be summarised as under:
2.1 On 8th September, 2011, one First Information Report being I-C.R. No.256 of 2011 came to be registered against the respondent No.1 herein with the Navrangpura Police Station, Ahmedabad for the offence punishable under Sections 406, 420, 467, 468 and 471 read with 34 and 114 of the Indian Penal Code against the respondent No.2 herein.
2.2 The respondent No.2 - original accused came to be arrested in connection with the above referred F.I.R.
2.3 On completion of the investigation, the Investigating Agency filed chargesheet dated 24th November 2011 against the respondent No.2 herein for the offences enumerated above.
2.4 The respondent No.2 preferred an application for bail in the City Sessions Court at Ahmedabad being the Criminal Miscellaneous Application No.4841 of 2011. The said bail application came to be allowed by the Additional Sessions Judge, Court No.14, Ahmedabad vide order dated 28th December 2011 subject to certain terms and conditions.
2.5 The operative part of the order passed by the Court below releasing the respondent No.2 on bail is extracted hereunder:
"The bail application of the applicant in respect of the offence registered vide Navrangpura Police Station First C.R.No.256/2011 under section 406, 420, 467, 468, 471, 34, 120-B, 506(2), is hereby granted.
The applicant of this case is ordered to be released on bail upon furnishing solvent surety of Rs.20,000/- and bail bond of the like amount, subject to the following conditions.
CONDITIONS :-
(1) The applicant shall produce the certified copy of the sale deed executed in favour of the complainant within 15 days after his release on bail or after the end of the strike of the employees of E-dhara. He shall settle the account with the remaining witnesses within four months and make the payment in that regard and submit the pursis thereof before the court. Failure to comply with this condition shall render the bail automatically cancelled.
(2) The applicant shall not tamper with the evidence of prosecution or the witnesses and shall never attempt to induce the witnesses.
(3) The applicant shall furnish his residential address and shall not change it without permission of the court.
(4) The applicant shall not leave the limits of Gujarat State without permission of the court.
(5) The applicant shall surrender the passport, if any.
(6) The applicant shall not engage in such type of offence or shall not commit any type of act breaching public tranquility until final disposal of this case.
(7) The applicant shall produce the surety before the subordinate court."
2.6 Thus, a condition was imposed that the respondent No.2 shall settle the accounts with the victims within a period of four months and make the necessary payment. The learned Sessions Judge clarified that if the conditions were not complied with, then the bail would stand automatically cancelled.
2.7 It appears that the respondent No.2 was unable to comply with the terms and conditions of grant of bail. In such circumstances, he preferred an application being the Criminal Miscellaneous Application No.1533 of 2012 in the City Sessions Court seeking necessary modification in the conditions.
2.8 The modification application came to be disposed of by the Additional Ses
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