Sunday 3 July 2022

Whether the court can impose any condition while releasing accused on bail which amounts to exercising powers provided under any other enactment?

  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. {Para 13}

14. 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.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 4953 of 2022

KIRANKUMAR VANMALIDAS PANCHASARA Vs STATE OF GUJARAT

CORAM: MR. JUSTICE NIRAL R. MEHTA

Date : 20/06/2022


1. 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.

2. 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.”

3. Being aggrieved by the aforesaid, the petitioner has

approached this Court by way of present Special Criminal

Application for the reliefs stated herein-above.

4. 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 ?”

5. This Court has in detail considered the provision of law

and observed as under :

10. So as to decide the aforesaid question, in my

view, it would be apt to consider relevant provisions

of the Act of 2003, which is as under :

“4. Attachment of properties on default of

return of deposit. (1) Notwithstanding

anything contained in any other law for the

time being in force,

(i) Where upon complaint received from the

depositor or otherwise, the State

Government is satisfied that any

Financial Establishment has failed,

(a) to return the deposit on maturity on

demand by the depositor; or

(b) to pay interest or other assured

benefit; or

(c) to provide the service promised

against such deposit; or

(ii) Where the State Government has reason

to believe that any Financial

Establishment is acting in a calculated

manner detrimental to the interest of the

depositors with an intention to defraud

them;

and if the State Government is satisfied that

such Financial Establishment is not likely to

return the deposits or make payment of

interest or other benefits assured or to

provide the services against which the deposit

is received, the State Government may, in

order to protect the interest of the depositors

of such Financial Establishment, after

recording the reasons in writing, issue an

order by publishing it in the Official Gazette,

for attaching the money, property or assets

belonging to or believed to have been

acquired by such Financial Establishment

either in its own name or in the name of any

other person from out of the deposits

collected by the Financial Establishment, or if

it transpires that such moneys, properties or

assets, is not available for attachment or not

sufficient for repayment of the deposits, such

other property or assets of the said Financial

Establishment or of the promoter, director,

partner or member of the said establishment

as the State Government may think fit.

(2) On publication of the order under subsec.

(1), all the moneys, properties and assets

of the Financial Establishment and of the

person mentioned therein shall forthwith vest

in the Competent Authority pending further

order from the Designated Court.

(3) The Collector of a district shall be

competent within his jurisdiction to receive

the complaint under sub-sec. (1) and he shall

forward such complaint alongwith his report

to the State Government at the earliest and

shall send a copy of the complaint to the

concerned Superintendent of Police or

Commissioner of Police, as the case may be,

for investigation.

5. Appointment of Competent Authority :-

(1) The State Government shall while issuing


the order under sub-sec. (1) of Sec. 4, appoint

an officer not below the rank of the Deputy

Collector to be the Competent Authority to

exercise control over the moneys, properties

and assets attached by the State Government

under Sec. 4.

(2) The Competent Authority shall have such

other powers and discharge such other

functions as may be prescribed by rules for

carrying out the purposes of this Act.

(3) The Competent Authority shall apply,

within thirty days from the date of the

publication of the order made under Sec. 4 to

the Designated Court, accompanied by one or

more affidavits stating therein the grounds on

which the State Government has issued the

said order and the amount of moneys or other

properties or assets belonging to or believed

to have been acquired out of the deposits and

the details, if any, or persons in whose name

such property is believed to have been

invested or acquired or any other property

attached under Sec. 4, for such further orders

as the Designated Court may find necessary.

(4) The Competent Authority may, also make

an application to any Special Court or

Designated Court or any other judicial forum

established or constituted or entrusted with

the powers by any other State Government for

adjudicating any issue or subject matter

pertaining to moneys or properties or assets

of the Financial Establishment under any

similar enactment in respect of moneys or

properties or assets belonging to or ostensibly

belonging to the Financial Establishment or of

any person notified under this Act situated

within the territorial jurisdiction of that

Special Court or Designated Court or any

judicial forum, as the case may be, for passing

appropriate orders to give effect to the

provisions of this Act.

6. Duties and powers of Competent

Authority:- (1) The Competent Authority, on

receipt of order of his appointment, shall take

such necessary actions as it is necessary or

expedient for taking physical possession of all

the moneys, properties and assets of the

concerned Financial Establishment

expeditiously and he shall have all the powers

which are necessary for the aforesaid

purpose.

(2) Without prejudice to the generality of the

powers vested under sub-sec. (1), the

Competent Authority shall be entitled to -

(a) require assistance of any police

authority or any other authority or

person and on such requisition, it shall

be the duty of the police authority or

such other authority or person to extend

necessary assistance;

(b) open bank accounts in any scheduled

commercial bank and credit all moneys

realised and operate the bank accounts

while dealing;

(c) to direct the person to furnish the

necessary information relating to

moneys, properties and assets of the

Financial Establishment to hand over

possession of such moneys, properties

and assets to the Competent Authority

and such person shall comply with the

requisition without any loss of tune;

(d) appoint legal practitioner or chartered

accountant or any other person whose

services are necessary for taking

possession of assets and realisation of

the assets of the Financial

Establishment;

(e) sell, receive, transfer, endorse,

negotiate or otherwise deal with any

marketable security or negotiable

instrument belonging to or in the control

of the Financial Establishment and give

proper discharge for the same;

(f) sell, transfer or otherwise realise any

movable or immovable property

belonging to or in the control of the

Financial Establishment either by public

auction or with the prior approval of the

Designated Court by private

arrangements :

Provided that the perishable items of

assets shall be sold by public auction at

the earliest as the Competent Authority

deems fit;

(g) make payment as per the orders passed

by the Designated Court from out of the

bank accounts; and

(h) do all and every acts and deeds which

would be necessary for the speedy

realisation of the assets of the Financial

Establishment.

Explanation. For the purpose of this

section, the expression "Financial

Establishment" includes the promoters,

directors, partners, managers or

members of the said establishment or

any other person whose property or

assets have been attached under Sec. 4.

7. Assessment of assets, deposits and

liabilities:- (1) The Competent Authority

shall, within thirty days from the date of his

appointment, assess the assets, deposits and


liabilities of the Financial Establishment and

submit the statement thereof to the

Designated Court.

(2) The Competent Authority thereafter shall

issue notice either individually or by means of

effective media publication inviting the claims

by secured creditors, if any, and also the

depositors of the Financial Establishment to

submit their claims with sufficient proof in

support thereof.

3) Every notice under sub-sec. (2) shall

specify that if the statement of claims is not

sent to the Competent Authority before the

expiry of the period of one month from the

date of such notice, the claims shall not be

treated as claim entitled to be paid under the

provisions of this Act.

(4) Every notice to a secured creditor shall

require him to value the security before the

expiry of the period of one month from the

date of the notice and such notice shall also

specify that if the statement of the claim

together with the valuation of the security is

not sent to the Competent Authority within

such period, the Competent Authority himself

shall value the security to the best of his

judgment and his valuation shall be binding

on such secured creditors.

(5) The Competent Authority shall prepare a

statement of dues of the Financial

Establishment which is due from various

debtors, the assessments of the value of the

property and assets of the Financial

Establishment and the list of the depositors

and their respective dues; and submit the

same to the Designated Court.


8. Report by Competent Authority:- The

Competent Authority shall, after complying

with the provisions of Sec. 7, make an

application to the Designated Court seeking

permission to make payment to the depositors

from out of the money realised. While making

such application, the Competent Authority

shall assess the liability to the depositors and

the other liabilities and in case the money

realised or realisable is not sufficient to meet

with the entire liability, make a submission to

the Designated Court seeking permission for

making payment to the depositors and

disburse the money as per the orders of the

Designated Court.

9. Designated Court :- (1) For the purposes

of this Act, the State Government may, with

the concurrence of the Chief Justice of the

High Court of Gujarat, by notification, in the

Official Gazette, constitute one or more

Designated Court of the level of the Court of a

District and Sessions Judge for such area or

for such case or group of cases or such class

as may be specified in the notification.

(2) No Court, other than the Designated Court

shall have jurisdiction to deal with or decide

any question which the Designated Court is

empowered to deal with or decide by or under

this 4.

(3) Any case or proceeding pending before

any Court or any authority in relation to the

moneys, properties or assets of the Financial

Establishment covered by an order made

under Sec. 4, shall stand transferred to the

respective Designated Court and shall be

dealt with and decided by such Court in

accordance with the provisions of this Act.


10. Powers of Designated Court regarding

attachment:- (1) Upon receipt of an

application made under Sec. 5, the

Designated Court shall issue to the Financial

Establishment or to any other person whose

moneys, properties or assets are attached by

the State Government and vested in the

Competent Authority under Sec. 4, a notice

accompanied by the application and affidavits

and copies of the evidence, if any, recorded,

calling upon the said establishment or the said

person to show cause on a date to be specified

in the notice, why the order of attachment

should not be made absolute.

(2) The Designated Court shall also issue such

notice, to all other persons represented to it,

as having or being likely to claim any interest

or title in the property of the Financial

Establishment or of the person to whom the

notice is issued under sub-sec. (1), calling

upon all such persons to appear on the same

date as that specified in the notice and to

make objection if they so desire, to the

attachment of the moneys, properties or

assets or any portion thereof on the ground

that they have interest in such property or

portion thereof.

(3) Any person claiming an interest in the

moneys, properties or assets attached or any

portion thereof may, notwithstanding that no

notice has been served upon him under this

section, make an objection as aforesaid to the

Designated Court at any time before an order

is passed under sub-sec. (4) or sub-sec. (6).

(4) The Designated Court shall, if no objection

is made or no cause is shown on or before the

specified date under sub-sec. (2), forthwith

pass an order making the order of attachment

absolute, and issue such direction as may be

necessary for realisation of the property, and

assets and moneys attached and for equitable

distribution among the depositors of the

money so realised.

(5) If cause shown or any objection is made as

aforesaid, the Designated Court shall proceed

to investigate the same and in so doing as

regards the examination of the parties and in

all other respects, the Designated Court shall,

subject to the provisions of this 4, follow the

summary procedure as contemplated under

Order 37 of the Civil Procedure Code, 1908 (5

of 1908) and exercise all the powers of a court

in hearing a suit under the said Code and any

person making an objection shall be required

to adduce evidence to show that at the date of

the attachment he had some interest in the

property so attached.

(6) After investigation under sub-sec. (5), the

Designated Court shall pass an order either

making the order of attachment passed under

sub-sec. (1) of Sec. 4 absolute or varying it by

realizing a portion of the property or assets or

moneys from attachment or canceling the

order of attachment:

Provided that the Designated Court shall not

release from attachment any interest, which it

is satisfied that the Financial Establishment or

the person referred to in sub-sec. (1) has in

the property or assets, unless it is also

satisfied that there will remain under

attachment an amount of property of value

not less than the value that is required for repayment

to the depositors of such Financial

Establishment.

(7) Where an application is made by any

person duly authorised or constituted or

specified by any other State Government


under similar enactment empowering him to

exercise control over any moneys or

properties or assets attached by that State

Government, the Designated Court shall

exercise all its powers, as if, such an

application were made under this Act and

pass appropriate order or give direction on

such application so as to give effect to the

provisions of such enactment.

11. Power of Designated Court regarding

realisation of assets and payment to

depositors:-

(1) The Designated Court shall have all the

powers for giving effect to the provisions of

this Act.

(2) Without prejudice to the generality of subsec.

(1), the Designated Court may-

(a) give any direction to the Competent

Authority as it deems fit, for effective

implementation of the provisions of this

Act :

(b) approve the statement of dues of the

Financial Establishment which is due

from various debtors, the assessment

of the value of the assets of the

Financial Establishment and finalise

the list of the depositors and their

respective dues;

(c) direct the Competent Authority to take

possession of any property or assets

belonging to or in the control of the

Financial Establishment and to sell,

transfer or realise the attached

property or assets either by public

auction or by private sale as it deems

fit depending upon the nature of

property or assets and credit the sale

proceeds thereof to the bank accounts;

(d) approve the necessary expenditure

incurred by the Competent Authority

for taking possession and realisation of

the properties and assets of the

Financial Establishment;

(e) pass an order to make payment to the

depositors by the Competent Authority

or for proportionate payment to the

depositors in the case where the

moneys so realised is not sufficient to

meet with the entire deposit liability;

and

(f) pass any order appropriate for

realisation of the property or assets of

the Financial Establishment and

repayment to the depositors of such

Financial Establishment or on any

matter incidental thereto.

Explanation. For the purpose of this

section, the expression "Financial

Establishment" includes the promoter,

director, partner, manager or member

of the said Establishment or any other

person whose properties or assets have

been attached under Sec. 4.”

11. 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.

12. 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.

13. 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.

14. 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.

6. 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.”

7. 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.

(NIRAL R. MEHTA,J)


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