CR.MA/17020/2011 14/ 14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 17020 of 2011 In [CASE NUMBER] For Approval and Signature: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [PRECEDENT] & 1 Appearance : SHRI [ENTITY] for Applicant(s) : 1, SHRI [ENTITY], APP for Respondent(s) : 1, SHRI. [ENTITY], LD. SENIOR COUNSEL with MRS. [ENTITY] for Respondent(s) : 2, CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 17/02/2012 ORAL JUDGMENT
The present Criminal Miscellaneous Application has been filed by the Applicant - Original Accused under [SECTION] read with [SECTION] of the [ACT] for modification of the condition imposed by the learned Chief Judicial Magistrate, Bhuj vide order dated 17.4.2002 in connection with [CASE NUMBER] at Gandhidham.
The facts of the case briefly stated are that the Applicant has been accused of the offence punishable under the [ACT] in connection with [CASE NUMBER]. The allegations are that the Applicant imported the goods for free distribution amongst the Gujarat earthquake victims under the Notification No.7/2001, amended by Notification No.17/2001 and had disposed of such material in the open market instead of free distribution and thereby taken undue advantage. The Applicant was therefore arrested and thereafter released on regular bail. The order has been passed by the learned Chief Judicial Magistrate while releasing the Applicant on bail. The conditions have been imposed inter alia regarding marking of presence between 11:00 AM to 2:00 PM at the office of DRI, [ENTITY] and surrender of passport by the Applicant. After this order was passed, the Applicant had moved various applications and he had also filed [CASE NUMBER] in [CASE NUMBER] before this court and this court (Coram: [ENTITY],J) vide order dated 27.4.2004 partly allowed the same and observed:
"At the end of arguments, learned counsel Mr.[ENTITY] states that the petitioner, at this stage, does not press the prayer for deleting of the condition no.[8] for return of the passport as imposed in the impugned order. Therefore, now only prayer for consideration before this Court is for deleting condition no.[1] of the impugned order. It is however contended that the petitioner has been regularly marking his presence every month before D.R.I.Office, Gandhidham but for the reasons and grounds stated in the application, the petitioner may be permitted to mark his presence at D.R.I. Office at Bombay from May, 2004.
Having regards to the reasons and grounds stated in the application and submissions made by the learned counsel for the parties and keeping in mind the fact yet the chargesheet is not filed, so also, the fact that petitioner has been regularly marking presence at D.R.I. Office at Gandhidham, this Court is of the opinion that the petitioner should be permitted to mark his presence at D.R.I. Office at Bombay instead of at Gandhidham, and hence the following order;
The petitioner, henceforth, shall mark his presence before the D.R.I. Office at Mumbai once in a month between 1st to 10th day of every calender month between 9.00 a.m. to 2.00 p.m. So far the prayer for returning of the passport etc. is, since, not pressed by the learned counsel Mr.[ENTITY] at this stage and therefore, the same is rejected accordingly but considering the request, liberty to the petitioner to move an appropriate application with such prayer as and when such occasion arises."
Thereafter also the Applicant filed [CASE NUMBER] in [CASE NUMBER] for identical prayers regarding deletion of the aforesaid condition regarding surrender of passport and raising similar contentions which have not been accepted by this court and the said [CASE NUMBER] was rejected vide order dated 22.11.2010.
Heard learned Advocate Shri [ENTITY] for the Applicant. Learned Advocate Shri [ENTITY] has submitted that when this court had passed the order in [CASE NUMBER] (at Annexure-F), the judgment of the Hon'ble Apex Court, as to whether the said offences were bailable or not bailable was not clear and thereafter the Hon'ble Apex Court in a judgment in case of [PRECEDENT] had the occasion to decide this aspect as to whether the offences under the [ACT] are cognizable or non-cognizable and as a result thereof whether they are bailable or not. Learned Advocate Shri [ENTITY] submitted that in view of this judgment, which is rendered on 30.9.2011, the present Criminal Misc. Application has been filed. Learned Advocate Shri [ENTITY] therefore submitted that these are the change of circumstances that the Hon'ble Apex Court has now decided that the offences under the [ACT] are bailable offences. He submitted that when the offences under the [ACT] are bailable offences, the Applicant accused is required to be released on bail as it is a indefeasible right as observed by the Hon'ble Apex Court in case of [PRECEDENT] (supra). He has referred to the said judgment and also submitted that this court has made observation in a judgment in case of [PRECEDENT]. Therefore, learned Advocate Shri [ENTITY] submitted that this court as well as the Bombay High Court clearly observed that once the offences are bailable, the accused has the right to be released on bail and there is no discretion left with the court nor any reason to impose any condition. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of [PRECEDENT] and submitted that there is another judgment in case of [PRECEDENT], wherein the Hon'ble Apex Court has observed that the court has discretion while granting bail in bailable offence and even to impose condition except demanding of surety. Learned Advocate Shri [ENTITY] has also referred to and relied upon the judgment in case of [PRECEDENT]).
Learned Advocate Shri [ENTITY] has made twofold submission that the "arrest" and the "prosecution" are two different things and they may not be interlinked. He therefore submitted that once the offence is bailable and the accused has a right to be released on bail, there is no such condition required to be imposed, and if a person is not remaining present, there are ample provisions in the [ACT] to secure his presence. He therefore strenuously submitted that considering all these aspects, the observations have been made.
Learned Advocate Shri [ENTITY] has submitted that liberty of the citizen has to be preserved and it cannot be restricted. In support of his submission he has referred to and relied upon the judgment in case of [PRECEDENT]. He has also referred to the order passed by this court in [CASE NUMBER] in [CASE NUMBER] and submitted that considering the judgment of the Hon'ble Apex Court in case of [PRECEDENT] (supra), this court had deleted the condition, and therefore, the present Criminal Misc. Application may be allowed.
Learned Senior Counsel Shri [ENTITY] appearing with learned Advocate Mrs. [ENTITY] for the Respondents has submitted that he has preliminary objection about the maintainability of the present Criminal Misc. Application as the Applicant has earlier filed [CASE NUMBER] for similar prayers. Learned Senior Counsel Shri [ENTITY] submitted that apart from this, even on merits, there is no ground mentioned for such deletion. He submitted that the prayer is worded for both "modification" and "deletion of the condition". He submitted that he has no objection for temporary modification or suspension as it has been done in the past. However, he submitted that for deletion of the condition, such application is not maintainable. Learned Senior Counsel Shri [ENTITY] has further submitted that the change in circumstances have to be either when there is amendment in the law or there is any subsequent change. In the facts of the present case, reliance placed by learned Advocate Shri [ENTITY] on the judgment of the Hon'ble Apex Court cannot have any bearing, as, at the time, when this court had passed the order earlier, the judgment was not there, and therefore, now it is not open for the Applicant that the order was passed by this court on the basis of the circumstances then existed, and the order is erroneous or it requires modification. Learned Senior Counsel Shri [ENTITY] has submitted that assuming without admitting, there is some observations made by the the coordinate Bench of this court as it is referred to in the judgment in case of [PRECEDENT] (supra) as well as in case of [PRECEDENT] (supra). However, he submitted that the said judgments also do not provide specifically, as it has to be read entirely in the background of the facts and the context of the facts of the case. Learned Senior Counsel Shri [ENTITY] submitted that in any case the judgment of the Hon'ble Apex Court in case of [PRECEDENT] (supra), which is referred to and relied upon by leaned Advocate Mr. [ENTITY] for the Applicant, is infact the earlier judgment and the later judgment of the Hon'ble Apex Court is in case of [PRECEDENT] (supra). He therefore submitted that even in that case, the later judgment would prevail, and therefore, there is no reason for deletion of condition as prayed for, and the present Criminal Misc. Application may be rejected. Learned Senior Counsel Shri [ENTITY] also submitted that there is no occasion or need for referring the matter to the larger bench as requested by learned Advocate Shri [ENTITY] for the Applicant.
In view of this rival submissions, it is required to be considered whether the present Criminal Misc. Application can be entertained or not.
The first aspect is with regard to the maintainability, as the contention has been raised by learned Senior Counsel Shri [ENTITY] that it is required to be mentioned that, as referred herein above, earlier also the similar prayer was made which was not pressed when [CASE NUMBER] in [CASE NUMBER] has been filed for similar prayer and only one prayer regarding marking the presence at Bombay instead of [ENTITY] has been modified, and the relief for deletion of condition regarding surrender of passport has not been pressed at that time. Thereafter, another Criminal Misc. Application has been filed being [CASE NUMBER] in [CASE NUMBER] by the Applicant for similar prayers before this court which was rejected vide order dated 22.11.2010. Therefore, though strictly the principles of resjudicata may not have application in such criminal proceedings, whether the principles analogous to the resjudicata or atleast on the ground of judicial discipline and propriety, such application can be entertained.
It is well accepted that the concept of resjudicata has developed on the underlying principle that the issue is litigated between the parties, then it should not be permitted to be raised again. Therefore, when same prayer has not been granted earlier and is turned down, it cannot be again repeated without any liberty being reserved.
Even on merits, the contentions raised by learned Advocate Shri [ENTITY] are required to be appreciated with close scrutiny. For the purpose of this application, what has been canvassed is the change of circumstances. The Hon'ble Apex Court in case of [PRECEDENT] (supra) has observed that the offence under the [ACT] and the [ACT] are non-cognizable and bailable, which has lead to filing of this Criminal Misc. Application. His argument appear to be that, once these offences are declared by the Hon'ble Apex Court as non-cognizable and bailable, the conditions cannot be imposed, and therefore, any such condition, which has been imposed earlier while releasing the Applicant on bail, would not be valid. Though such contention has been raised, there is no statutory provisions, which bars imposing of such condition.
It is required to be mentioned that the declaration of the offence under the [ACT] and [ACT] as non-cognizable and bailable by the Hon'ble Apex Court is one aspect, where it is interpreted as bailable offence and therefore the bail should be granted as a matter of course or right and the court or the officer concerned may not have any discretion. However, while granting bail whether suitable condition could be imposed or not, is another aspect all together. The conditions are normally imposed in order to strike a balance between the right of the accused and the right of the prosecution. The accused is released on bail to avoid unnecessary confinement. At the same time the right of the prosecution is preserved or protected to secure the presence of the accused for the purpose of trial. The underlying policy of grant of bail which has been evolved, has been discussed in catena of judicial pronouncements, including the judgment in case of [PRECEDENT] (supra), it has been observed:
"8. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.
Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice."
The Hon'ble Apex Court in case of [PRECEDENT]. (supra) has also reiterated after considering the rights of the accused.
The concept of bail find its origin in the genesis of basic human rights. The court is under an obligation to strike a balance between the two conflicting claims. On the one hand, the society to be shielded from hazards of misadventures of a person who is alleged to have committed crime, and on the other hand, the fundamental canon of criminal jurisprudence that a person is presumed to be innocent till he is found guilty, and the aspect of liberty - which is one of the most important basic human right, which require consideration. In other words, even if such liberty is required to be curtailed or regulated, it has to be with utmost care that it balances the individual right and the rights of the society as a whole.
Therefore, the judgment of the Hon'ble Apex Court in case of [PRECEDENT] (supra) does not refer to the issue involved in the present matter. Admittedly, there is no statutory provision which suggest that no such condition can be imposed. Therefore, the court has to consider the observations made by the Hon'ble Apex Court in case of [PRECEDENT] (supra), wherein, it has been observed:
"In bailable offence there is no question of discretion for granting bail. The only choice for the court is as between taking a simple recognizance of the principal offender or demanding security with surety. Persons contemplated by this section cannot be taken in custody unless they are unable or unwilling to offer bail or to execute personal bonds. The court has no discretion, when granting bail under this section, even to impose any condition except the demanding of security with sureties."
However, this judgment has to be read in the context and background of the facts and it has been read as a whole. After this judgment is rendered by the Hon'ble Apex Court, in a subsequent judgment in case of [PRECEDENT] (supra), wherein the Hon'ble Apex Court has observed:
"10. The position of persons accused of non-bailable offence is entirely different. The right to claim bail granted by [SECTION] of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of [SECTION] are imperative. The only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety.
There is no manner of doubt that bail in a bailable offence can be claimed by the accused as of right and the officer or the court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him."
[emphasis supplied] It is required to be mentioned that, in earlier judgment in case of [PRECEDENT] (supra) the Hon'ble Apex Court has not considered the issue involved in this matter directly, but it has made a reference to this aspect of bailable offence. Therefore, when the subsequent judgment focusing on the very issue has specifically observed, will have more weightage as a binding precedent though both may be binding.
Therefore, in light of the aforesaid discussions, considering the provisions of [SECTION] of [ACT] as well as the binding precedent as discussed above with the specific observations made by the Hon'ble Apex Court in case of [PRECEDENT] (supra), the submissions made by learned Advocate Shri [ENTITY] for the Applicant cannot be accepted and the present Criminal Misc. Application deserves to be rejected to the extent that it claims total deletion of the conditions though the prayer for modification or temporary suspension of the condition could be considered and has been considered.
It is required to be mentioned that the prayer clause in this Criminal Misc. Application has both the prayer for "modification" and "deletion of the condition" and the emphasis is totally on deletion, which cannot be granted. The modification or suspension for a limited period could always be considered.
Rule is discharged.
(Rajesh H. Shukla,J) [ENTITY]*
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