AJAYKUMAR PRAVINCHANDRA THAKER Vs. STATE OF GUJARAT

JUDGEMENT

(1.) With the consent of learned advocates appearing for the parties matter is taken up for final hearing today. The only question arises for consideration is: Whether the trial court was justified in putting the condition of deposit of passport while cancelling the Non-Bailable Warrant in addition to the imposition of Penalty of Rs.500/-? 3.Heard Mr.Purohit for the petitioner and Mr.Gohil, Ld.APP for the respondent-State and Mr.Buch for the original complainant.

(2.) As such, upon hearing the learned advocates for the parties, it appears that on factual aspect there is no dispute that a Non-Bailable Warrant has issued by the Ld.Magistrate and the petitioner applied for cancellation of said Non-Bailable Warrant. It was the case of the petitioner that he remained personally present on the last date of adjournment and the Ld.Magistrate found that he did not remain present. Be as it may, but, it appears that the Ld.Magistrate has found that it is a case for cancellation of warrant. However, the Ld.Magistrate has considered the amount of cheque for Rs.2 lacs and has found that the penalty of Rs.500/- is required to be imposed and condition for surety of Rs.5,000/- is also required to be imposed and in addition to the same, the Ld.Magistrate has put the condition of directing the petitioner accused to remain present on every day of hearing fixed by the court and has also directed for deposit of passport. So far as the other part of the conditions of the order are concerned, the same is not under challenge except the condition for deposit of passport. It is under these circumstances, against the direction for deposit of passport the petitioner has approached this court.

(3.) In normal circumstances, it is the discretion of the court to impose suitable conditions considering the facts and circumstances of the case. However, such a judicial discretion deserves to be exercised properly. The exercise of such discretion should not appear to be so perverse or ex-facie harsh to either party to the proceedings. The impugned complaint is under Negotiable Instruments Act and the case is a summons triable case. It is true that the accused in normal circumstances is required to remain present on the date fixed by the court, but when the Ld.Magistrate has also found a case for cancellation of warrant by imposing the penalty of Rs.500/- and of directing to furnish surety for a sum of Rs.5,000/-. The learned Magistrate has not examined on the aspect of the other conditions for ensuring that the petitioner accused may not be in a position to hamper the proceedings of trial in case his presence is required at the time of trial. The Ld.Magistrate could have provided for that condition upon the petitioner accused of not to leave the limits of Gujarat State without prior permission of the authorities in addition to the condition of remaining present on the date which may be fixed by the court. The Ld.Magistrate could also have directed the petitioner for furnishing undertaking to the court so that in the event there is any breach of such undertaking the court may be in a position to impose punishment for breach of undertaking in addition to other powers as are prescribed under law. Keeping in view the subject matter of the complaint and as that it is a summons triable case the discretion appears to have been ex-facie harshly exercised by the Ld.Magistrate which deserves to be interfered with by this court in exercise of powers under Article 227 of the Constitution of India. The Ld.advocate for the petitioner, during the course of hearing, has also agreed to be abide by the condition not to leave the Gujarat State without prior permission of the court and for giving undertaking to the court to remain personally present on every date of hearing and therefore I find that no further discussion is required on the said aspects leaving the matter at that stage. Suffice it to say that the said condition, considering the facts and circumstances of the case, would take care and ensure that the accused is not in a position to hamper the trial before the learned Magistrate as his presence can be secured accordingly in addition to other normal mode provided under law.