Court No. - 52
Case :- APPLICATION U/S 482 No. - 269 of 2019 Applicant :- Smt. Suman Sabbarwal Opposite Party :- State Of U.P. And 2 Ors Counsel for Applicant :- Vivek Shandilya Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard Sri Vivek Shandilya, learned counsel for the applicant and learned A.G.A. for the State and perused the record.
The present application is being disposed of without calling for any counter affidavit from the opposite parties as the same involves only a question of law.
The present application under Section 482 Cr.P.C. has been filed by the applicant for quashing the order dated 20.11.2018 passed by Additional Chief Judicial Magistrate, Court No.1, Jhansi in Criminal Case No.1240 of 2015 (State vs. Suman Sabbarwal), arising out of Case Crime No.339 of 2014, under Sections 420, 468, 467, 471, 406, 504, 506 I.P.C., Police Station- Sipari Bazar Jhansi, District- Jhansi on the release application filed by the applicant under Section 85 Cr.P.C to the extent of directing the applicant to furnish two sureties of Rs. 1 lac each and a personal bond and that when the stay order passed by the Hon'ble High Court is vacated, she would appear before the court.
Background of the case is that opposite party no.3 lodged an F.I.R. vide Case Crime No.339 of 2014 under the aforesaid sections on 17.4.2018 based on frivolous grounds against the applicant who is an aged lady of about 66 years and her son, Gaurav Sabbarwal. During investigation, the moveable property of the applicant was attached under Section 83 Cr.P.C. by the order of A.C.J.M.-1st, Jhansi on 21.2.2015. The charge-sheet against the applicant was laid on 22.2.2015. The applicant filed an application under Section 482 Cr.P.C. being Criminal Misc. Application (U/s 482 Cr.P.C.) No.22898 of 2015 with the prayer to quash the charge- sheet dated 22.2.2015 and also the summoning order dated 23.6.2015 passed by the A.C.J.M., Court No.6. This Court by an order dated 7.8.2015 stayed further proceedings in respect of applicant only. The said application is still pending before the Court and the interim order staying further proceedings is still operative. Thereafter, the applicant filed an application for release of the property attached under Section 83 Cr.P.C., however, the same was rejected by the Magistrate on the ground that as the proceedings have been stayed by the Hon'ble High Court, no orders can be passed on the release application by an order dated 1.8.2018. The applicant challenged the order dated 1.8.2018 in Criminal Misc. Application (U/s 482 Cr.P.C.) No.40727 of 2018 and the Court by an order dated 14.11.2018 held that the order passed by the court below does not suffer from any illegality and was affirmed and the Court had observed as under:-
"However, in view of the fact that the purpose of attachment of the goods of the applicant was to secure her presence and she has appeared before the Court below and thereafter the proceedings of the trial Court have been stayed, the Court below is directed to release the goods of the applicant attached for securing her presence without being influenced by the order dated 07.08.2015 passed against the Trial Court in Criminal Misc. Application under Section 482 Cr.P.C. No.22898 of 2015."
Pursuant to the aforesaid order dated 14.11.2018 of this Court, the applicant moved an application for release of attached moveable property belonging to her in her favour. The learned Magistrate by the impugned order dated 20.11.2018 directed the S.H.O., P.S. Sipari Bazar, District Jhansi to hand over the moveable property to the applicant with the conditions (i) that the applicant shall furnish two sureties of Rs.1 lac each and a personal bond with an undertaking to the effect that as and when the interim order granted by the Court is vacated she would appear before the court. The grievance of the applicant is that under Section 85(1) Cr.P.C. while releasing the moveable property in favour of the applicant as also directed by the Court on 14.11.2018, the learned Magistrate exceeded in its jurisdiction to direct the applicant to furnish two sureties of Rs.1 lac each and a personal bond.
Learned counsel for the applicant has argued that neither any condition was imposed by the Court while disposing of the Criminal Misc. Application (U/s 482 Cr.P.C.) No.40727 of 2018 by an order dated 14.11.2018 nor Section 85(1) Cr.P.C. empowers the Magistrate to impose any condition while releasing the property from attachment. It is stated that the applicant is an old lady and the condition of furnishing two sureties of Rs.1 lac each and a personal bond is too onerous which virtually amounts to denial of the release of the attached property in her favour. She has also subjected herself to the jurisdiction of this Hon'ble Court as well as the courts below.
Considering the submissions made by the learned counsel for the applicant, background of the case and the orders passed by this Court, I am of the view that the condition of furnishing two sureties of Rs.1 lac each for ensuring the presence of applicant is wholly unwarranted. However, I do not find any impropriety or illegality whereby the learned Magistrate has directed the applicant to file a personal bond and an undertaking to the effect that as and when the interim order granted by the Court is vacated she would appear before the court.
In my opinion, the condition of furnishing two sureties of Rs.1 lac each is hereby set-aside. However, the applicant shall file a personal bond of Rs.25,000/- and also give an undertaking to the effect that as and when the interim order granted by the Court is vacated she would appear before the court.
In view of the aforesaid, the attached property shall be released in favour of the applicant.
With the aforesaid observations/directions, the application stands disposed off.
Order Date :- 21.1.2019 Vikas