1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 754 OF 2009 Shri Avinash Wamanrao Thorat and another .. Applicants V/s The State of Maharashtra and another .. Respondents Shri B. P. Abhale, for the Applicants Shri J. P. Kharge, APP for the Respondent-State CORAM: MRS. MRIDULA BHATKAR, J. DATED: 15th August, 2009 ORAL ORDER. 1. Heard. 2. By consent of the parties taken up for final hearing. 3. This appeal is preferred by the appellants accused challenging the order passed by the Learned Additional Sessions Judge, Nashik dated 22nd June, 2009, rejecting his application seeking release of properties by furnishing bank guarantee to the extent of value of the properties shown in Schedule-D and Schedule C to the “ ” application. 4. The Learned Counsel appearing for the appellants has submitted that the order passed by the learned Judge rejecting the application is not legal as it is not in consonance with the spirit of Section 8 of the Criminal Law (Amendment ) Ordinance 1944. The Learned Counsel has submitted that the appellants do not want to withdraw the property which are attached but they want to raise loans on those properties to meet the expenses of the wedding of their 2 daughter and to give financial aid to their own to settle in his life. He has further submitted that the condition imposed at the time of executing the bond against the attached property did not permit the appellants accused to transfer or hypotheticate or mortgage the properties and therefore, the appellants are not in position to enjoy or develop the property. The learned Counsel has submitted that Section 8 of the Criminal Law (Amendment ) Ordinance 1944 gives ample powers to the District Judge to consider such application and the learned Judge has lost sight that the provisions of the ordinance in respect of attachment of the property are similar to that of Order XXXVII of the Civil Procedure Code and the procedure is to be followed accordingly. He has further submitted that the reasons given by the learned Judge while rejecting the application are cryptic and not tenable in law. 5. The Learned APP opposed this appeal. 6. The procedure under the Criminal Law (Amendment ) Ordinance 1944 in respect of he attachment of the properties is to be followed as laid down under Order XXXVII of C.P.C. However, while entertaining any application under Section 8 of the Criminal Law (Amendment ) Ordinance 1944, especially in the matters where the accused is facing charges under the Prevention of Corruption (Amendment) Act, 1988, the Judge needs to take into account number of facts viz. the value of the assets which was shown at the time of registration of the offence and prevailing market value of the immovable property, the possibility of disposal of the property etc. If the property is a subject of the offence of the disproportionate assets, then the value which is shown at the time of registration of the offence cannot be considered, as the value of the property increases. 3 7. Accepting Bank guarantee at the then prevailing value which is shown in the Chart will be a misleading calculation of the valuation. Section 8 of the Criminal Law (Amendment ) Ordinance 1944 gives discretionary power to the District Judge that the reasons given for furnishing security in lieu of attachment should be satisfactory and sufficient. Learned Sessons Judge, in para 6 of the judgment has mentioned that if the property is released on the Bank guarantee, it may create complication and secondly the accused may try to dispose of the property under the pretext of the Bank guarantee. It is also mentioned that the applicant is going to raise loan which will create encumbrances on the attached property. These reasons are sufficient and satisfactory. No illegality or perversity is found in the order passed by the Learned Sessions Court. 8. In the result, the Appeal is dismissed in limine with no order as to cost. 9. At this state, learned Advocate Shri Abhale for the appellants accused has pointed out that the charge is framed in the year, 2000 and out of 120 witnesses, the Sessions Court has examined only one witness. Under these circumstances the Sessions Court to take this matter immediately to decide and dispose it of on or before 31st March, 2010. (MRIDULA BHATKAR,J.) jpc/-