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2024 DIGILAW 848 (GUJ)

Prakash Sheshmalji Jain v. State Of Gujarat

2024-04-12

ILESH J.VORA

body2024
ORDER : 1. By invoking inherent powers under Section 482 of the Cr.P.C., the applicants seek to issuance of appropriate direction to the Registry of this High Court, for releasing the amount deposited, pursuant to the common order of this Court dated 20.1.2017 passed in Criminal Misc. Application Nos. 537 of 2017 and 540 of 2017. 2. This Court has heard learned Senior Counsel Mr. B.B. Naik, assisted by learned counsel Mr. Viral Pandy, appearing for and on behalf of the applicants, Mr. Hitesh N. Acharya, learned counsel appearing for the second respondent -original complainant and Mr. Jay Mehta, learned APP for the State. 3. The facts necessary to appreciate the reliefs claimed by the applicants are that, 4. The applicants herein, by invoking Section 438 of the Cr.P.C., sought their pre-arrest bail in connection with the FIR being C.R. No. I-154 of 2016, registered with Kheda Town Police Station for the offence punishable under Sections 420, 427 and 114 of the Indian Penal Code. This Court, vide its common order dated 20.1.2017, allowed the application. During the course of hearing of the applications, the voluntary statement made by the applicants that, they are ready to deposit the amount of consideration of Rs. 2,73,66,000/- received from the complainant. In the order, the condition No. (g) was imposed, directing the applicants to deposit the said amount with the Registry of this Court within a period of 45 days. The co-ordinate Bench of this Court, in Para-6 of the said order, further observed that as and when the amount is deposited, the Registry of this Court shall transfer it to the Civil Court, Mehmadabad, which shall remain as deposit in connection with the Civil Suits, subject to the rights and contentions of both the parties, in Civil and Criminal proceedings. 5. Dis-satisfied with the condition imposed by the Court to deposit the amount, the applicant herein, file Special Leave to Appeal (Criminal) No. 2812-2813 of 2017. The Apex Court, vide its order dated 7.4.2017, was not inclined to interfere with the condition of the Bail Order and directed the applicant to comply with the order, Resultantly, the Special Leave to Appeal came to be rejected. 6. After the order of the Hon’ble Apex Court, the applicant herein filed a Criminal Misc. Application (for Modification of the Order) No. 25492 of 2017, in Criminal Misc. 6. After the order of the Hon’ble Apex Court, the applicant herein filed a Criminal Misc. Application (for Modification of the Order) No. 25492 of 2017, in Criminal Misc. Application No. 537 of 2017, whereby they sought to modify the condition No.6 of the order dated 20.1.2017. The Co-ordinate Bench of this Court, vide its order dated 8.12.2017, did not agree with the submissions and contentions advanced by the Counsel for the applicants and accordingly, the prayer to return back the deposited amount against the security, was refused and application was rejected. 7. The applicants herein have complied the aforesaid order and the amount so deposited, transmitted to the Civil Court, Mehmadabad, where the Suits are pending between the parties and the same has been invested in the FDR, as directed. Meanwhile, after completion of investigation, the Police has filed a charge-sheet against the applicant before the Judicial Magistrate Court, Mehmadabad, District: Kheda, and it has been culminated into Criminal Case No. 277 of 2019. 8. The applicants herein by invoking inherent jurisdiction of this Court, filed a quashing application, to quash the proceedings of the said Criminal Case. After hearing the parties, the Co-ordinate Bench of this Court vide its order dated 11.1.2022, quashed the criminal proceedings. The second respondent-complainant being aggrieved with the order of quashing, approached the Hon’ble Apex Court by filing Leave to Appeal (Criminal) No. 1062 of 2022, and the same was dismissed on 21.2.2022. 9. In the aforesaid facts and circumstances, the applicants again have prayed that, by directing the Registry of this Court, the amount so deposited would be released, as the impugned FIR and charge-sheet have already been quashed and attained its finality, and in such circumstances, the condition No. (g) of the Bail Order would not remain into force. 10. Mr. B.B. Naik, learned Senior Counsel has contended that the very cause for imposing the condition No. (g) is not now survive as the FIR and consequential proceedings thereto have been quashed by Co-ordinate Bench of this Court and Special Leave to Appeal against the order of quashing, came to be dismissed by the Hon’ble Apex Court and, therefore, due to termination of the Criminal proceedings, the applicants are entitled to get the said amount, which was deposited. The second contention raised is that the law regarding exercise of discretion while granting pre-arrest bail having been settled by the Hon’ble Apex Court in its various judgments that Court cannot impose a condition to deposit the amount, as imposed in the present case. The reason behind that a criminal proceedings are not for realization of disputed dues without any trial. Thus, the order imposing the condition No. (g) to deposit the amount and that too subject to outcome of the Civil Suit is without jurisdiction and non est and, therefore, while entertaining the present application to release the amount after finality of the criminal proceedings, this Court is not bound to consider the order, as it has been passed without jurisdiction and, therefore, the same is not binding and treated as nullity in eye of law. The third issue raised is that before the Hon’ble Apex Court, the condition No. (g) of the bail order was challenged and, therefore, when, the further order investing the amount subject to outcome of Civil Suits, was not the subject matter before the Hon’ble Apex Court, this Court, in such circumstances, the case is made out for issuance of necessary directions, as sought, to release the deposited amount. 11. In view of the aforesaid contention, Mr. B.B. Naik, learned Senior Counsel would urge that the amount deposited has remained idle and the Civil Suits pending before the Court, will take considerable time and, therefore, for the ends of justice, the Court may exercise its power. 12. Mr. Acharya, learned Counsel appearing for the complainant- respondent No.2, relying on the judgment of the Apex Court, delivered in the case of Engineering Export Promotion Council v. Usha Anand, 2013 (12) SCC 620 , raised the preliminary issue of maintainability of this application and contended that the direction as sought is purely an administrative action and it can be sought only by a writ-petition under Articles 226 and 227 of the Constitution of India and, therefore, the application invoking inherent powers under Section 482 of Cr.P.C, is not maintainable and on this ground, the petition deserves to be dismissed. The second issue raised is that, the amount so deposited is subject to outcome of the Civil Suits and, therefore, merely a termination of the criminal proceedings would not be a ground to return back the amount so deposited, more particularly, the modification of the prayer made earlier, was rejected by this Court and the Hon’ble Supreme Court was also not inclined to interfere with the condition No. (g) of the Bail Order and, therefore, unless and until Civil Suits are not disposed of, the amount so deposited cannot be directed to refund back to the applicant herein. In such circumstances, Mr. Acharya would urge that the application having no merits, and same deserves to be dismissed with costs. 13. Having regard to the peculiar facts and circumstances of the present case, the issue falls for my consideration is to whether case is made out for issuance of direction to the Registry of this Court to release the deposited amount in favour of the applicants herein. 14. In order to appreciate the submissions, Para-5 and condition No. (g) of Para-6 as well as Para-8 are necessary to refer, which reads as under: Order dated 20.1.2017 passed in CrMA No. 537 of 2017 with 540 of 2017: "5. The Court having heard learned advocates for both the sides and having perused the FIR and having also considered that the applicants have volunteered to deposit the amounts of consideration received by the applicants for their lands as alleged by the informant in the FIR, finds that the discretion under section 438 of the Code could be exercised in favour of the applicants by imposing some additional conditions. Learned Advocate Mr.Unwala stated that the amount of Rs.2,37,66,000/- shall be deposited by the applicants through applicant of first application i.e. Mr.Prakash Sheshmalji Jain within 45 days from today which may be recorded as one of conditions to be complied with by the applicants for grant of anticipatory bail to them. In view of above volition of the applicants to deposit the amount and having perused the police papers, this Court finds that discretion under section 438 of the Code should be exercised in favour of the present applicants with additional condition of deposit of amount of Rs.2,37,66,000/- mentioned in the FIR with the Registry of this Court within the time period as agreed by the applicants". "6(g): the applicant of the first application i.e. Prakash Sheshmalji Jain on behalf of all the applicants shall deposit the amount of Rs.2,37,66,000/- with the Registry of this Court within a period of 45 days from today, failing which the anticipatory bail granted to the applicants shall automatically stand cancelled". "8. It is pointed out to the Court that the informant has filed total 11 Special Civil Suits for different block numbers of lands being Special Civil Suit Nos.56 to 66 of 2016 before the Civil Court at Mehamdabad. The Court finds that since the informant has filed the Special Civil Suits for specific performance to register the saledeeds in connection with the remaining lands as stated by learned Advocate for the informant, it would be appropriate if the amount to be deposited by the applicants with the Registry of this Court is transferred to the Civil Court at Mehamadabad to remain as deposit in connection with the above stated Special Civil Suits. It is therefore ordered that after the applicant of first application i.e. Prakash Sheshmalji Jain deposits the amount of Rs.2,37,66,000/- with the Registry of this Court, the Registry of this Court shall transfer the said amount to the Civil Court at Mehamadabad which shall remain as deposit of the amount in connection with the abovestated Special Civil Suits. It is made clear that deposit of the abovestated amount by the applicants shall be subject to the rights and contentions of both the parties in civil and criminal proceedings between the parties. On transfer of the amount to the Civil Court, it will be opened to the Civil Court to pass order for investing the amount in Fixed Deposit with Nationalized Bank. Rule is made absolute in both the applications. Direct service is permitted". 15. The order of the Apex Court, wherein the aforesaid order was subject matter being Special Leave to Appeal (Cri) No.(s). 2812-2813/2017, dated 7.4.2017, is also necessary to refer and the same reads as under: "UPON hearing the counsel the Court made the following ORDER Taken on board. Heard the learned counsel for the petitioners and perused the relevant material. Exemption from filing certified copy of the impugned judgment and O.T. is granted. 2812-2813/2017, dated 7.4.2017, is also necessary to refer and the same reads as under: "UPON hearing the counsel the Court made the following ORDER Taken on board. Heard the learned counsel for the petitioners and perused the relevant material. Exemption from filing certified copy of the impugned judgment and O.T. is granted. Condition No.6(g) of the order dated 20th January, 2017 in respect of which the challenge has been made in the present Special Leave Petitions was at the instance of the accused petitioners themselves. The High Court has even extended the period of deposit upto 10th April, 2017. We are, therefore, not inclined to interfere. However, we grant 30 days further time with effect from 10th April, 2017 to the accused petitioners to deposit the balance amount, failing which the pre- arrest bail granted to them by the High Court shall stand cancelled without further reference to the Court. The Special Leave Petitions are disposed of in the above terms". 16. After the dismissal of the Special Leave to Appeal against the imposition of the condition No. (g) of the Bail order, the applicants have prayed before this Court by filing Criminal Misc, Application No. 25492 of 2017 in Criminal Misc. Application No. 537 of 2017 whereby the Co-ordinate Bench of this Court, which has imposed the condition vide its order dated 8.12.2017, refused to delete or modify the condition No. (g). Para-8 of the said order reads as under: "[8] The Court having heard learned advocates for both the sides finds that the modification of condition no.6(g) prayed for is on the premise that the applicant needs the amount deposited by him for his business purpose and against the amount deposited by him, he is ready to provide security to the satisfaction of this Court including the bank guarantee. The Court finds that when the applicant had shown willingness to deposit the abovesaid amount on his behalf and on behalf of other accused applicants of the application of anticipatory bail, he was conscious that considering the allegations in the FIR, he volunteered to deposit the amount to get the bail connection with FIR. The applicant and co- accused are alleged not to have done the registration of the sale deed after executing the sale deed in favour of the opponent no.2 for sale of their land. The applicant and co- accused are alleged not to have done the registration of the sale deed after executing the sale deed in favour of the opponent no.2 for sale of their land. In fact, the applicant had no much dispute about receipt of consideration from the opponent no.2 and, therefore, he showed willingness to deposit the above referred amount with this Court and the applicant even agreed to transmit the amount to the Civil Court wherein the civil suits are pending between the parties and for investment of such amount in the fixed deposit subjecting the same to result of the suits. Now since the applicant wants to make use of the amount is no ground to permit the applicant to take back the amount against security. The Court, therefore, finds that the applicant has not made out the case for modification of condition no.6(g) so as to permit him to furnish security against the amount deposited by him or to furnish bank guarantee for withdrawal of the amount which is alleged to be the amount of consideration paid by the opponent no.2 to the applicant and co-accused". 17. Having considered the submissions advanced by the learned advocates for the respective parties and on perusal of the material placed on record, this Court is of the view that the present application seeking direction to refund and/ or release the deposited amount, is pre-mature and at this stage, it cannot be entertained. The reason behind such conclusion is that at the time of granting anticipatory bail, the co- ordinate Bench of this Court, has categorically observed that the amount so deposited shall remain as a deposit with the Civil Court, subject to the rights and contentions of the parties in the Civil as well as Criminal proceedings and the intention to impose such condition was that the amount will remain till outcome of the Criminal as well as Civil proceedings. The Suits are pending for adjudication before the Civil Court, Mehmadabad. Therefore, merely a termination of criminal proceedings, would not give rise a cause to the applicants to claim the said amount. It is to be noted that after passing of the said order, the applicants approached the Apex Court. After perusal of the order, the Hon’ble Apex Court was not inclined to interfere with the order. Therefore, merely a termination of criminal proceedings, would not give rise a cause to the applicants to claim the said amount. It is to be noted that after passing of the said order, the applicants approached the Apex Court. After perusal of the order, the Hon’ble Apex Court was not inclined to interfere with the order. Thus, it cannot be said that the challenge before the Apex Court was only condition No. (g) of the Order and the observations, made in Para-8 of the Order, was not having challenge or subject matter before the Apex Court. The applicant could have filed review petition before the Apex Court for clarification with regard to observations made in Para-8 of the Bail Order. The other reason for not entertaining this Application is that after the order of the Apex Court, rejecting the prayer to modify and/ or delete the condition No. (g), the applicants had approached this Court by filing Cr.MA, wherein they again sought a relief for modification or deletion of the condition No. (g) and the same was not entertained by the Co-ordinate Bench. 18. In such circumstances, the Bail Order dated 20.1.2017 has attained finality. The relief, as sought, is nothing but indirectly seeking review or recall of the order passed by this Court. It is settled position of law that the High Court has no jurisdiction to review and/ or recall its order either under Section 362 or Section 482. Inherent powers under Section 482 cannot be exercised to re-open or alter and/ or modify an order disposing of an application decided on merits and has attained the finality upto the Apex Court and, therefore, the prayer is nothing but to reconsider the earlier prayer, which was rejected upto the Supreme Court. In such case, the Apex Court time and again, observed that one cannot do indirectly what cannot do directly. Recently, the Supreme Court in the judgment Supratech Limited v. Emerald Owner Resident Welfare Scheme, 2023 (10) SCC 817 , has laid down the principle that where the power is given to do certain things in a certain way, the things must be done in that way or not at all or other methods of performance are necessity forbidden. 19. Recently, the Supreme Court in the judgment Supratech Limited v. Emerald Owner Resident Welfare Scheme, 2023 (10) SCC 817 , has laid down the principle that where the power is given to do certain things in a certain way, the things must be done in that way or not at all or other methods of performance are necessity forbidden. 19. For the reasons recorded and analysis thereof, the contention as raised by the applicants herein that on being termination of the criminal proceedings, they are entitled to get the amount so deposited, having no merits. 20. The second contention, as raised is that, the order is without jurisdiction and non est and is not binding to this Court as such kind of nature of condition cannot be imposed while exercising discretionary power under Section 438. The Apex Court, recently in the case of Rameshkumar v. State of NCT of Delhi, reported in (2023) 7 SC 461, after examining the earlier judgments, has observed that the criminal proceedings are not for realization of disputed dues and the Court exercising jurisdiction to grant bail/ anticipatory bail is not act as a recovery agent to realise the dues of the complainant and that too without any trial. However, the Apex Court has clarified that the Supreme Court may not be understood to have laid down the law that in no case should willingness to make payment / deposit by the accused be consider before grant of order for bail. With this observation, the Apex Court has further held that in exceptional cases such as where an allegation of mis-appropriation of public money by the accused is levelled, and the accused while seeking indulgence of the Court to have his liberty, secure / restore volunteers to account for the whole or any part of the public money allegedly misappropriated by him, it would be open to the Court concerned, to consider whether in larger interest the money misappropriated should be allowed to be deposited before the application for anticipatory bail is taken up for final consideration. 21. In light of the proposition of law, as laid down and observations made by the Apex Court, this Court is of considered opinion that the dispute in present case is a private in nature, however, this Court while exercising the powers to grant anticipatory bail upon willingness and volunteered shown by the applicants herein, imposed the condition. 21. In light of the proposition of law, as laid down and observations made by the Apex Court, this Court is of considered opinion that the dispute in present case is a private in nature, however, this Court while exercising the powers to grant anticipatory bail upon willingness and volunteered shown by the applicants herein, imposed the condition. One of the contentions is that at the relevant time, while transmitting the amount to the Civil Court, the Court has suo-motu passed the order and on this issue, the opportunity of being heard was never afforded. On this aspect, this Court is of the view that once the order obtains its finality upto the Supreme Court, the judicial discipline and comity demands that, it should not be fair to review and/ or recall indirectly the order which has got finality upto the Supreme Court and, therefore, the contention that the order is without jurisdiction or non est and it will have no binding effect, cannot be accepted and examined when this Court, in a modification application and the Apex Court on merits, declined to interfere with the order imposing the condition No. (g) and observation made in para-8. 22. For the reasons aforementioned, this Court do not find any merits in the present application and it stands dismissed.