KARSHANBHAI HARKHABHAI JIVANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application is filed under Section 439(1)(b) of the Code of Criminal Procedure by original accused No.1, i.e. Karshanbhai Harkhabhai Jivani, for seeking the following reliefs:-

(2.) Learned advocate Mr. Bhaumik Dholariya appearing on behalf of the applicant has submitted that while granting anticipatory bail, conditional order is passed by the Court below, i.e. learned Additional Sessions Judge, Jamnagar on 4.8.2020, in which one of the conditions is an onerous condition, which is too harsh and the same is not possible to be fulfilled. Mr. Dholariya has invited the attention of the Court to condition No.(5) contained in the said order by virtue of which, the Court below had directed the applicant to deposit Rs.38,99,055/- to the concerned Judicial Magistrate First Class, Dhorol or before the concerned Mandali within a period of 15 days from the date of this order, failing which, the order shall be deemed to have been cancelled automatically. By inviting this, it has been contended by Mr. Dholaria that this kind of direction is not recognized by series of decisions and one of such decision is also incorporated in the body of the application on page 7, which is reported in AIR 2013 SCW 5947. In addition to it, it has further been contended that total sum even if assumed comes to Rs.57 lakh as per the mere allegation and out of which, an amount of Rs.18 lakh has already been deposited and in a separate proceeding, the property in question belonging to the applicant, worth more than Rs.30 lakh, is already attached. So, the interest of the Mandali is well being protected by the aforesaid situation. Further, it has been contended that surprisingly, when the order is received by the applicant, this kind of direction appears to have been issued by the Court below, which was never conceded nor voluntarily agreed upon. Had it been so, the applicant would not have accepted. It has further been submitted that the order was passed on 4.8.2020 and immediately upon receipt of the copy, the application was prepared on 7.8.2020, which was signed on 8.8.2020 and in between there was Saturday and Sunday and therefore, on 10.8.2020, this application was filed and immediately without wasting any time, the applicant has approached this Court for modification of the said condition. Pursuant to the said submission, notice is issued by this Court on 18.8.2020 and during the course of hearing, Mr. Dholariya has come out with an Undertaking in furtherance of the earlier precautionary measures, which have been provided to the Mandali and the said Undertaking is affirmed on 18.8.2020 and placed on record today, and by referring to para 2, it has been submitted that further independent agricultural land mentioned in the said Undertaking will not be transferred or alienated till disposal of the trial of the main case and the market value of the said land is more than Rs.50 lakh and as such, by offering such kind of Undertaking to this Court, a request is made that the condition contained in the order, being onerous, be modified by granting the reliefs as prayed for in the application.

(3.) As against the aforesaid submissions, learned APP Mr. J.K. Shah has submitted that no-doubt, the condition appears to be harsh but the applicant is arraigned in a serious offence which has been alleged and therefore, learned Judge might have protected the interest of the Mandali as well as the prosecution at the best. However, Mr. Shah could not withstand to the circumstance that this condition appears to be onerous and in view of the fact that sufficient safeguards are already provided by the applicant, learned APP Mr. Shah has left the matter to the discretion of this Court.