A single judge bench of the Gujarat High Court in the case Kirankumar Vanmalidas Panchasara versus State of Gujrat, comprising of Justice Niral R. Mehta stated while exercising its powers under Section 439 of Code of Criminal Procedure, 1973, No condition can be imposed by the court impose any condition which amounted to it exercising powers envisaged under some other enactment. It was held by the court that any condition imposed would be beyond the court’s direction.
Facts of the Case:
An FIR was registered against the the petitioner for offences punishable under Sections 406, 420, 114 and 120(B) of the Indian Penal Code, 1860 and Section 3 of the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 following with the arrest of the petitioner and an application under Section 439 of the Cr.P.C. was filed by the petitioner for seeking regular bail, in furtherance of the aforesaid FIR. The same was allowed by the Trial Court with certain conditions. The two conditions in contention were that first that within two weeks of his release from custody, the applicant was to produce bank guarantee of Rs.33,06,695/-. The second condition stated that the bank guarantee shall stand forfeited in favour of the complainant-State, in case the I.O. fails to recover the amount.
Issue raised before the Court:
Before the Court, the question arouse was that weather the Court, while exercising its powers under Section 439 of Cr.P.C., could impose such a condition which amounts to exercising powers envisaged under another enactment i.e., Section 3 of the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003.
the court found after assessing the provisions of the Act that the Act itself had inbuilt mechanism with regard to offences related to the Act. the Competent Authority was to take necessary actions concerning financial establishment and after which the Designated Court was to either make an order of attachment absolute or portion of money realizing from the attachment and any such assets from the attachment or cancelled the order of the attachment.
The Court held in the view of the aforesaid mechanism:
It is clear that ultimate power of any attachment vest with the Designated Court made under the Act of 2003. with regard to passing of any orders under Section 10(6) of the Act of 2003, the Designated Court has exclusive jurisdiction and the Designated Court may make attachment order as absolute or modify or cancel.
The Court stated that the conditions imposed by the trial court under Section 439 of Cr.P.C. were completely beyond the jurisdiction of the trial court because without following any procedure as prescribed, they amounted to usurping powers envisaged under Section 10(6) of the Act.
In the present case, the petition was allowed in part and the trial court order was modified to the extent that the petitioner shall furnish running bank guarantee of Rs.33,06,695/- within a period of two months and the condition stating that in case the I.O. fails to recover the amount. In favour of the complainant-State was deleted, the bank guarantee shall stand forfeited.