APPEAL AGAINST BAIL CONDITION
9. In the background of the aforesaid facts and circumstances, the appellant approached the High Court seeking an order under section 438 of the Cr. PC. Similar approach was made by the builder. The High Court by its common order dated 24th November, 2022 granted bail to the appellant and the builder, subject to certain conditions. One of the conditions imposed by the High Court for grant of bail reads as follows: “(e) as undertaken, the petitioners/builder Ashwani Kumar shall deposit a sum of Rs. 13,00,000/- (Rs. Thirteen lacs only) and the owner Ramesh Kumar shall deposit a sum of Rs. 22,00,000/- (Rs. Twenty-two lacs), with the learned Trial Court, in the form of FDR in the name of the Court initially for a period of one year with an automatic renewal clause, within 4 weeks.” The undertaking referred to in the aforesaid extract is traceable to paragraph 6 of the impugned judgment, reading as follows: “6.0. In rebuttal, Ld. Counsel for the petitioners submitted that the petitioners are ready to join investigation and explain. Ld. Counsel also submitted that without prejudice to their respective rights and contentions, the builder undertakes to deposit a sum of Rs. 13 lacs within 8 weeks and owner Ramesh Kumar is ready to deposit a sum of Rs. 22 lacs with the Court.”
10. Expressing his difficulty in arranging for funds to deposit Rs. 22,00,000/- (Rupees twenty-two lakh), the appellant had applied before the High Court under section 482 of the Cr. PC seeking extension of time to make the requisite deposit. By an order dated 8th February, 2023, the said application was disposed of by the High Court granting extension of time by 3 (three) days, failing which it was directed that anticipatory bail granted to the appellant shall automatically stand revoked.
11. The appellant is aggrieved by the aforesaid condition [clause(e) of paragraph 9.0. of the impugned judgment and order] imposed by the High Court and is now before us seeking revocation of the same while urging that the other part of the order be maintained.
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17. Legality of the impugned condition is what we are now tasked to examine and decide.
18. It would be appropriate at this stage to note certain precedents in the field governing the discretion of the courts to grant anticipatory bail.
19. We start with Gurbaksh Singh Sibbia and others vs. State of Punjab [(1980) 2 SCC 565], a Constitution Bench decision of this Court. “……….”
20. This Court in Mahesh Candra vs. State of U.P [(2006) 6 SCC 196] was dealing with a case where the relevant high court had directed payment of Rs.2,000/- (Rupees two thousand) to be made to the victim (daughter-in-law) as a condition for grant of anticipatory bail. “……”
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22. Sumit Mehta vs. State (NCT of Delhi) [(2013) 15 SCC 570] arises out of a decision of the High Court granting anticipatory bail but inter alia on the condition that the appellant, accused of commission of offences punishable under sections 420/467/468/471 of the IPC, deposits an amount of Rs.1,00,00,000/- (Rupees one crore) in fixed deposit in the name of the complainant. The point that fell for consideration is captured in paragraph 6, which reads as follows:
“6. The only point for consideration in this appeal is whether the condition of depositing an amount of Rs 1,00,00,000 in fixed deposit for anticipatory bail is sustainable in law and whether such condition is outside the purview of Section 438 of the Code?”
After hearing the parties, this Court made the following pertinent observations:
“11. While exercising power under Section 438 of the Code, the court is duty-bound to strike a balance between the individual’s right to personal freedom and the right of investigation of the police. For the same, while granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the court while imposing conditions must be exercised with utmost restraint.
12. The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution.
13. We also clarify that while granting anticipatory bail, the courts are expected to consider and keep in mind the nature and gravity of accusation, antecedents of the applicant, namely, about his previous involvement in such offence and the possibility of the applicant to flee from justice. It is also the duty of the court to ascertain whether accusation has been made with the object of injuring or humiliating him by having him so arrested. It is needless to mention that the courts are duty-bound to impose appropriate conditions as provided under sub-section (2) of Section 438 of the Code.
14. Thus, in the case on hand, fixed deposit of Rs 1,00,00,000 for a period of six months in the name of the complainant and to keep the FDR with the investigating officer as a condition precedent for grant of anticipatory bail is evidently onerous and unreasonable. It must be remembered that the court has not even come to the conclusion whether the allegations made are true or not which can only be ascertained after completion of trial. Certainly, in no words are we suggesting that the power to impose a condition of this nature is totally excluded, even in cases of cheating, electricity pilferage, white-collar crimes or chit fund scams, etc.
15. The words ‘any condition’ used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.”
23. We may next take note of two decisions of this Court of recent origin.
24. In Dilip Singh vs. State of Madhya Pradesh [(2021) 2 SCC 779] “…”
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25. Yet again in Bimla Tiwari vs. State of Bihar [(2023) SCC OnLine SC 51] “…”
26. Law regarding exercise of discretion while granting a prayer for bail under section 438 of the Cr. PC having been authoritatively laid down by this Court, we cannot but disapprove the imposition of a condition of the nature under challenge. Assuming that there is substance in the allegation of the complainants that the appellant (either in connivance with the builder or even in the absence of any such connivance) has cheated the complainants, the investigation is yet to result in a charge-sheet being filed under section 173(2) of the Cr. PC, not to speak of the alleged offence being proved before the competent trial court in accordance with the settled procedures and the applicable laws. Sub-section (2) of section 438 of the Cr.P.C does empower the high court or the court of sessions to impose such conditions while making a direction under sub-section (1) as it may think fit in the light of the facts of the particular case and such direction may include the conditions as in clauses (i) to (iv) thereof. However, a reading of the precedents laid down by this Court referred to above makes the position of law clear that the conditions to be imposed must not be onerous or unreasonable or excessive. In the context of grant of bail, all such conditions that would facilitate the appearance of the accused before the investigating officer/court, unhindered completion of investigation/trial and safety of the community assume relevance. However, inclusion of a condition for payment of money by the applicant for bail tends to create an impression that bail could be secured by depositing money alleged to have been cheated. That is really not the purpose and intent of the provisions for grant of bail. We may, however, not be understood to have laid down the law that in no case should willingness to make payment/deposit by the accused be considered before grant of an order for bail. In exceptional cases such as where an allegation of misappropriation of public money by the accused is levelled and the accused while seeking indulgence of the court to have his liberty secured/restored volunteers to account for the whole or any part of the public money allegedly misappropriated by him, it would be open to the concerned court to consider whether in the larger public interest the money misappropriated should be allowed to be deposited before the application for anticipatory bail/bail is taken up for final consideration. After all, no court should be averse to putting public money back in the system if the situation is conducive therefor. We are minded to think that this approach would be in the larger interest of the community. However, such an approach would not be warranted in cases of private disputes where private parties complain of their money being involved in the offence of cheating.
Party
RAMESH KUMAR vs. THE STATE OF NCT OF DELHI – CRIMINAL APPEAL NO………………… OF 2023 [ARISING OUT OF SLP(Crl.) NO.2358 OF 2023] – JULY 04, 2023
https://main.sci.gov.in/supremecourt/2023/6997/6997_2023_9_1504_44877_Judgement_04-Jul-2023.pdf
Ramesh Kumar vs. The State of NCT of Delhi – bail condition
