2502apl86.11.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLIATION (APL) NO.86 OF 2011. Shantilal Kunjilal Rathi ..vs.. State of Mah. through P.S.O.P.S.City Kitwali, Akola. CRIMINAL APPLIATION (APL) NO.87 OF 2011. Nandkishor @ Nandlal Navalkishor Kothari .vs.. State of Mah. through P.S.O.P.S.City Kitwali, Akola. ............................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................................... Mr.N.S.Bhattad, Adv. for the applicants. Mr.C.N.Adgokar, APP for the respondent. CORAM : PRASANNA B. VARALE, J. DATED : 25 th February, 2011. 1. Heard learned counsel for the applicants and the learned APP for the respondent. 2. By the present applications, the applicants are seeking challenge to the orders passed by the learned Additional Sessions Judge, Akola dated 8/2/2011 and 7/2/2011. The applicants, who are accused in F.I.R.crime No.M-1/2011 dated 28/1/2011 registered at City Kotwali Police Station at Akola for the offences punishable under Sections 420, 417, 418 read with Section 34 of the Indian Penal Code, had moved Criminal Application Nos.101 of 2011 and 106 of 2011 respectively in the Sessions Court for seeking their pre-arrest bail. 3. In short, the submission of the applicants as raised in the application were that the applicants, who were purchasers of certain 2502apl86.11.odt 2 properties i.e. a shop bearing Nos.13 and 14 situated at Kothari Commercial Complex, Akola, which were hypothicated by the original owner to one Bank. The original owner of the said shops, who had availed loan from the bank failed to repay the loan and as such the bank has proceeded against the purchasers. In short, the submission of Mr.Bhattad, learned counsel for the applicants, is that there is no criminal act committed by the applicants and it was purely a civil dispute. On the grounds raised in the applications, the applicants approached the learned Additional Sessions Judge, Akola. The learned Sessions Judge by order dated 8/2/2011 allowed the application No. 101 of 2011 on the conditions that the applicant to deposit amount of Rs.7,00,000/- in the bank in two equal instalments i.e. one of Rs.3,50,000/- by 15/2/2011 and another of Rs.3,50,000/- by 15/3/2011. The learned Additional Sessions Judge by order dated 7/2/2011 allowed the application No.106 of 2011, which is challenged in APL No.87 of 2011, allowed the application of the applicant on the condition that the applicant to deposit amount of Rs.15,00,000/- in the bank in three instalment i.e. first of Rs.5,00,000/- by 15/2/2011, second of Rs.2,50,000/-by 15/3/2011 and third of Rs.7,50,000/- by 15/4/2011. The learned Sessions Judge has also imposed further condition on both the applicants that in case of failure to deposit the amount with the bank, the anticipatory bail shall stand cancelled. Further condition is that the applicants to co-operate the police in the investigation and not to leave Akola district without prior intimation to police. 4. Learned counsel for the applicants submitted that the conditions imposed by the learned Additional Sessions Judge were too excessive. It was practically impossible for the applicants to comply with those conditions. The learned counsel further submitted that the learned Additional Sessions Judge ought not to have imposed such conditions. 2502apl86.11.odt 3 The learned counsel by inviting my attention to the judgment in the case of Munish Bhasin and ors. ..vs.. State (Govt. of NCT of Delhi) and anr., reported in (2009)4 SCC 45. submitted that the Apex court has observed that while exercising the discretion to release the accused under Section 438 of the Code of Criminal Code, the court would not be justified in imposing freakish conditions. The learned counsel further submitted that the conditions imposed by the learned Additional Sessions is a sort of such freakish conditions, which made the applicants to comply them practically impossible. 5. The learned counsel further submitted that as per his instructions, the condition No.i(ii) of depositing the amount of Rs.3,50,000/- by 15/2/2011 in M.C.A.No.101 of 2011, the applicant has moved for extension of time for depositing the amount of Rs.3,50,000/- by 15/2/2011 and as per his instructions the time was extended by the learned Sessions Judge, Akoal, initially till 23/2/2011 and thereafter till today i.e. 25/2/2011. Mr.Bhattad, the learned counsel for the applicants, submitted that the application for extension is pending for orders before the learned Additional Sessions Judge, Akola. The learned counsel is unable to place on record any copy of such extensions granted by the court below. 6. Perusal of the order passed in MAC No.106 of 2011, challenged in APL No.87 of 2011 in connection with the same crime shows that the court below has also imposed similar conditions while granting anticipatory bail to the applicant. 7. Perusal of the orders shows that it was submitted by the applicants that they are ready to deposit the amount as condition to show their bona fides. Learned counsel for the applicants submits that there was no such undertaking given by the applicants to the court. 2502apl86.11.odt 4 8. Per contra, learned APP submitted that as the applicants themselves have expressed their willingness, the court has imposed certain conditions while allowing the applications. Learned APP further submits that there is nothing on record to suggest that there was any extension granted by the learned Additional Sessions Judge for depositing the amount as condition, imposed in the said applications. 9. In view of the controversy revolving around the particular fact that whether the applicants have submitted their undertakings before the court, the learned counsel for the applicants submits that he may be permitted to approach the learned Additional Sessions Judge for considering the applications afresh. In view of the submission of the learned counsel for the applicants and in view of the judgment of the Apex court reported in (2009)4 SCC 45 (supra), I am of the opinion that it will be appropriate if the learned Additional Sessions Judge, Akola considers the applications afresh on merits by giving fair opportunity to the applicants as well the learned APP. Needless to mention that the applicants are denying their undertaking before the court. The court shall consider the applications on its own merits and pass appropriate orders as expeditiously as possible and in any case within period of two weeks from the date of receipt of this order. Needless to mention that if the applicants have not deposited the amount as directed by the court within the stipulated period, the consequences would follow as directed by the court in the initial order dated 8/2/2011 and 7/2/2011 if it is not extended by the court. Learned counsel for the applicants submits that as per the conditions imposed by order dated 7/2/2011, the applicant has deposited an amount of Rs.5,00,000/- as a first instalment on 15/2/2011. 10. In the result, order dated 8/2/2011 and 7/2/2011 are quashed and set aside. The learned Additional Sessions Judge, Akola shall pass appropriate orders on the applications on merits by giving an 2502apl86.11.odt 5 opportunity of hearing to the parties. The protection granted to the applicants will remain in force till the applications are decided by the Additional Sessions Judge, Akola. Both the applications stand disposed of accordingly. Hamdast granted. Steno copy of this order be provided to the parties. JUDGE chute