KRISHNAKUMAR GURUVACHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The following are the prayers made in paragraph no.7 of the present application:

(2.) The present application which is titled as an application for modification of the condition no.5(f) and paragraph no.6 in the order dated 31.01.2017 passed by this Court in Criminal Misc. Application No.2231 of 2017. The condition no.5(f) and observations made in paragraph no.6 of the order dated 31.01.2017 read as under.

(3.) Learned advocate Mr.Subhash Jha appearing with learned advocate Mr.Sandeep Limbani for the applicants submitted that the direction / order to surrender passport, while granting anticipatory bail to an accused, would amount to impounding of his passport, which power, the Court does have. He submitted that by imposing such condition, the Court has gone beyond the power available to it under section 438 of the Criminal Procedure Code, 1973 ("the Code"). Mr.Jha submitted that the observation / condition imposed for the police remand in the order of anticipatory bail also runs counter to the scheme of Section 438 of the Code, especially when the bail granted in exercise of power under Section 438 of the Code is to enure till the trial is over. Mr.Jha submitted that after the Court grants bail, if the Investigating Agency finds some more material showing deeper complicity in the offences alleged, it is open to the State to apply for cancellation of the bail but allowing the police to have the custody of the accused will negate the order of bail. He submitted that the provisions of Section 438 of the Code do permit imposition of condition for police remand after bail is granted. He submitted that permitting the police to take remand would amount to relegating the accused to the authority of the police and to the Court of Magistrate to decide faith of the accused though the highest Court of the State has in its discretion granted bail to the accused. Mr.Jha submitted that it is permissible to infuse condition intended by legislature as it would amount to unreasonable restriction on the liberty of the accused which would be violative of Article 21 of the Constitution.