It must be stated before stating anything else that in a significant development, we see that the Single Judge Bench of the Gujarat High Court comprising of Justice Nirmal R Mehta held in a learned, laudable, landmark and latest judgment titled Kirankumar Vanmalidas Panchasara vs State of Gujarat in R/Special Criminal Application No. 4953 of 2022 that while exercising its powers under Section 439 of CrPC, the Court could not impose any condition which amounted to it exercising powers envisaged under some other enactment. The court minced no words to hold explicitly that any such condition imposed would be completely beyond the court’s jurisdiction. Very rightly so!
At the outset, the Single Judge Bench comprising of Hon’ble Mr Justice Niral R Mehta sets the ball rolling by first and foremost putting forth in para 1 that, “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 in Para.4 and 6 in CR.MA No.503 of 2022 by the Designated Court of Principal District and Sessions Judge, Rajkot.”
To put things in perspective, the Bench then envisages in para 2 that, “Short facts of the case can be stated as under :
2.1 The FIR being CR No.11208055210354 of 2021 registered with DCB Police Station, Rajkot for offences punishable under Sections 406, 420, 114 and 120(B) of the IPC and Section 3 of the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 (for short ‘the Act of 2003’) by one Shri Mahendrabhai Dadbhai against the present petitioner.
2.2 In furtherance of the aforesaid FIR, the petitioner came to be arrested and thereby, an application being Criminal Misc. Application No.503 of 2022 came to be preferred under Section 439 of the Cr.P.C. for seeking, inter-alia, regular bail. The said application came up for hearing before the learned Principal District and Sessions Judge (Designated Court), Rajkot, who, vide its order dated 22.4.2022, allowed the same with certain conditions, mainly Condition Nos.4 and 6, which read, thus :
“(4) The applicant to produce bank guarantee of Rs.33,06,695/- (Rupees Thirty Three Lacs Six Thousand Six Hundred Ninety Five Only) in the name of Nazir, District Court, Rajkot, within two weeks of his release from custody. However, the payment / disbursement shall be subject to the provisions of G.P.I.D. Act and/or final decision of the trial.
(6) In case the I.0. fails to recover the amount of Rs.33,06,695/- (Rupees Thirty Three Lacs Six Thousand Six Hundred Ninety Five Only) from the applicant, the bank guarantee shall stand forfeited in favour of the complainant -State.””
As it turned out, the Bench then discloses in para 3 that, “Being aggrieved by the aforesaid, the petitioner has approached this Court by way of present Special Criminal Application for the reliefs stated herein-above.”
By the way, the Bench then lays bare in para 4 that, “This Court had an occasion to deal with and decide somewhat similar issue in Special Criminal Application No.1692, decided on 9.6.2022, wherein in Para.9 following question was framed and decided :
“9. So far as deletion of condition No.6 is concerned, short but interesting question of law arises for consideration of this Court is whether the Court while exercising powers under Section 439 of the Cr.P.C., can impose such condition which amounts to exercising powers envisaged under the another enactment i.e. Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 ?””
Be it noted, the Bench then ventures to point out in para 11 that, “Having considered the aforesaid provisions in detail, it appears that the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 itself has inbuilt mechanism with regard to offences related to said Act of 2003. It further appears that it is the State Government, who, upon receipt of a complaint, appoints an officer not below the rank of Deputy Collector as the Competent Authority to exercise control over the moneys, properties and assets attached by the State Government under Section 4. It is the competent authority, upon being appointed, takes necessary action of taking physical possession of all the moneys, properties and assets of the concerned financial establishment. The competent authority, after preparing report of the asset, deposit and liability of the financial establishment, submit the same before the Designated Court and thereafter, shall make an application seeking permission of the Designated Court to make payment to the depositors from the money realized and thereafter, the Designated Court, after due investigation, either make an order of attachment absolute or portion of such assets or money realizing from the attachment or cancelled the order of attachment.”
As a corollary, the Bench then postulates in the next para 12 stating that, “In view of the aforesaid mechanism, it is clear that ultimate power of any attachment made under the Act of 2003 vests with the Designated Court. The mechanism of the Act of 2003 right from the passing of order under Section 4(1) and thereafter, appointment of competent authority under Section 5 and thereafter, the powers conferred to the Designated Court under Section 10(6) are the special powers and the same have to be in consonance with the provisions of the Act of 2003. The Designated Court has exclusive jurisdiction with regard to passing of any orders under Section 10(6) of the Act of 2003. The Designated Court may make attachment order as absolute or modify or cancel.”
Most significantly, the Bench then expounds in para 13 what forms the cornerstone of this notable judgment wherein it is enunciated that, “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. Thus, the impugned condition imposed by the Sessions Court while exercising powers under Section 439 of the Cr.P.C., in my considered opinion, is beyond its competence and is also contrary to the provision of the Act of 2003. The Sessions Court while exercising discretionary powers under Section 439 of Cr.P.C. and while imposing condition, could not have overlooked the provision of the Act of 2003 and could not have passed an order imposing condition akin to provision of Section 10(6) of the Act of 2003. Thus, the bank guarantee which is furnished by the petitioner cannot be in such a way appropriated and/or forfeited in favour of complainant State, without following due procedure of law prescribed under the Act of 2003.”
As we see, the Bench then minces no words to hold unequivocally in para 14 that, “In view of the aforesaid discussion, in my considered opinion, Condition No.6 imposed by the learned Principal District and Sessions Judge (Designated Court), Rajkot while exercising its power under Section 439 of the Cr.P.C., is beyond its competence and thus, the said condition deserves to be deleted. I answer the question accordingly.”
What’s more, the Bench then specifies in the next para that, “Finally, this Court has allowed the aforesaid Special Criminal Application, by observing as under :
“15. Resultantly, this Special Criminal Application is hereby allowed in part. The order dated 2.2.2022 passed by the learned Principal District and Sessions Judge (Designated Court), Rajkot in Criminal Misc. Application No.2705 of 2021 is hereby modified to the extent that so far as condition No.4 is concerned, the petitioner shall furnish running bank guarantee of Rs.2,02,47,500/- within a period of two months from today and the Condition No.6 is hereby deleted. Rule is made absolute to the aforesaid extent. Direct service is permitted.””
Finally, the Bench then concludes by holding in the last para that, “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. Direct service is permitted.”
All said and done, we thus see that the Single Judge Bench of Gujarat High Court comprising of Hon’ble Mr Justice Niral R Mehta has minced absolutely no words to make it crystal clear that the Court cannot impose any condition which amounts to exercising powers envisaged under any other enactment. The Court also minced just no words to make it abundantly clear that any such condition that has been imposed would be completely beyond the Court’s jurisdiction. It merits no reiteration that in similar such cases all the Courts must definitely without fail pay heed to what the Gujarat High Court has held so unequivocally in this leading case! No denying it!
