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SCR.A/2798/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2798 of 2011
=========================================
MARKANDBHAI
RAMANBHAI PANDYA & 2
Versus
STATE
OF GUJARAT
=========================================
Appearance
:
MR PP MAJMUDAR for
Petitioners
MR HL JANI APP for
Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 17/11/2011
ORAL
ORDER
[1] RULE.
Learned APP Mr.H. L. Jani waives service of rule for the respondent –
State.
[2] The
present petition has been filed by the petitioners under Article 226
of the Constitution of India and under Section 482 of the Criminal
Procedure Code for the prayer that appropriate writ, order or
direction deleting conditions no.5, 10 and 11 imposed by learned 5th
Additional Sessions Judge, Vadodara, vide order dated 26.08.2011 in
Criminal Misc. Application No.1405 of 2011 on the grounds stated in
the petition.
[3] Heard
learned advocate Mr.P. P. Majmudar for the applicants and learned APP
Mr.H. L. Jani for the respondent – State.
[4] Learned
advocate for the petitioner submitted that the petitioners, who are
the original accused preferred anticipatory bail under Section 438 of
the Criminal Procedure Code and learned 5th Additional
Sessions Judge, Vadodara, vide order dated 26.08.2011 granted
anticipatory bail with certain conditions. The condition No.5 is
regarding prohibiting the petitioners from entering the revenue
district of Vadodara. It is weighed with the Court while granting
anticipatory bail that petitioner No.1 is having job at Vadodara and
petitioner No.2 is the female and petitioner No.3 is studying at
Vadodara and, therefore, the order has been passed and on the other
hand, the condition is imposed that they may not enter into the
district of Vadodara. Similarly condition No.10 has been imposed to
the effect that regular bail has to be obtained within 10 days and
condition No.11 states that the order will remain in force upto 90
days.
[5] As
it transpires from the record that the order is still force in 90
days which is contrary to the pronouncement of the Hon’ble Supreme
Court in the case of Siddharam Satlingappa Mhetre Vs. State of
Maharashtra and others, reported in 2011 (1) GLH 11, wherein the
Hon’ble Supreme Court, after considering the judicial pronouncement
as well as the provisions and the scheme of the Criminal Procedure
Code particularly Section 438 and the Constitution, has observed as
under :-
“The
validity of the restrictions imposed by the Apex Court, namely, that
the accused released on anticipatory bail must submit himself to
custody and only thereafter can apply for regular bail. This is
contrary to the basic intention and spirit of Section 438 Cr.P.C. It
is also contrary to Article 21 of the Constitution. The test of
fairness and reasonableness is implicit under Article 21 of the
Constitution of India. Directing the accused to surrender to custody
after the limited period amounts to deprivation of his personal
liberty.
xxxx xxxxx
That
validity of that Section must accordingly be examined by the test of
fairness and reasonableness which is implicit in Article 21. If the
legislature itself were to impose and unreasonable restriction on the
grant of anticipatory bail, such a restriction could have been struck
down as being violative of Article 21. Therefore, while determining
the scope of Section 438, the Court should not impose any unfair or
unreasonable limitation on the individual’s right to obtain an order
of anticipatory bail. Imposition of an unfair or unreasonable
limitation, according to the learned Counsel, would be violative of
Article 21, irrespective of whether it is imposed by legislation or
by judicial decision.”
[6] In
the facts and circumstances of the case and having regard to the
nature of offence etc., the petition deserves to be allowed and
accordingly stands allowed. The prayer in terms of paragraph No.12(A)
is granted. The conditions No.5, 10 and 11 imposed by learned 5th
Additional Sessions Judge, Vadodara, in Criminal Misc. Application
No.1405 of 2011 as per order dated 26.08.2011 are hereby deleted.
All other conditions shall remain unaltered. Rule is made absolute.
Direct service is permitted.
[
RAJESH H. SHUKLA, J. ]
vijay
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