S.439CrPC- Bail-Court Cannot Impose Any Condition Which Amounts To Exercising Powers Envisaged Under Any Other Enactment: Gujarat High Court

Briefly, the facts of the case are that an FIR was registered against the petitioner 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 (the Act). In furtherance of the aforesaid FIR, the petitioner was arrested and an application under Section 439 of the Cr.P.C. was filed seeking regular bail. The trial court allowed the same with certain conditions. The two conditions in contention were that first, the applicant was to produce bank guarantee of Rs.33,06,695/- within two weeks of his release from custody. The second condition stated that in case the I.O. fails to recover the amount, the bank guarantee shall stand forfeited in favour of the complainant-State.

The question that arose before the court was 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 the another enactment i.e. Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 (the Act).

After assessing the provisions of the Act, the court found that the Act itself had inbuilt mechanism with regard to offences related to the Act. As per the same, the Competent Authority was to take necessary actions concerning financial establishment, after which the Designated Court was to either make an order of attachment absolute or portion of such assets or money realizing from the attachment or cancelled the order of attachment.

In view of the aforesaid mechanism, the court held that –

"It is clear that ultimate power of any attachment made under the Act of 2003 vests with the Designated Court...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."

Therefore, it was held that the conditions imposed by the trial court under Section 439 of Cr.P.C. were completely beyond its jurisdiction because they amounted to usurping powers envisaged under Section 10(6) of the Act, without following any procedure as prescribed.

In view of above, the petition was allowed in part. The order of trial court was modified to the extent that the petitioner shall furnish running bank guarantee of Rs.33,06,695/- within a period of two months from today and the condition which stated that in case the I.O. fails to recover the amount, the bank guarantee shall stand forfeited in favour of the complainant-State was deleted.

Case No.: R/SCR.A/4953/2022

Case Title: KIRANKUMAR VANMALIDAS PANCHASARA v/s STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 238

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