“High Courts Should Refrain From Imposing Conditions To Deposit Money As A Pre-requisite To Anticipatory Bail” held Supreme Court
Recently, Hon’ble Supreme court disposed of an appeal challenging the order passed by the Hon’ble High Court wherein appellants were called upon to deposit a sum of Rs. 22,00,000/- as a condition precedent to secure anticipatory bail in alleged cheating case and remitted back the matter to Hon’ble High Court to hear the matter on merits in the light of judgment pronounced in the case of Mahesh Candra vs. State of U.P (2006) 6 SCC 196.
The Hon’ble Apex court very categorically observed that “A disquieting trend emerging over the years which has gained pace in recent times necessitates this opinion. It has been found by us in multiple cases in the past several months that upon First Information Reports being lodged inter alia under section 420 of the Indian Penal Code, 1860 (“the IPC”, hereafter), judicial proceedings initiated by persons, accused of cheating, to obtain orders under Section 438 of the Code of Criminal Procedure, 1973 (“the Cr. PC”, hereafter) are unwittingly being transformed into processes for recovery of the quantum of money allegedly cheated and the courts driven to impose conditions for deposit/payment as pre-requisite for grant of pre-arrest bail. The present case is no different from the others and it is considered appropriate to remind the high courts and the sessions courts not to be unduly swayed by submissions advanced by counsel on behalf of the accused in the nature of undertakings to keep in deposit/repay any amount while seeking bail under section 438 of the Cr. PC. and incorporating a condition in that behalf for deposit/payment as a pre-requisite for grant of bail.”
BRIEF FACTS OF THE CASE
The complainant and the builder/appellant signed an agreement to sell the second floor of the building for the due consideration of Rs. 55,00,000/- Rs. The complainant had paid a substantial sum of Rs. 17,00,000/- already. The appellant/builder failed to deliver the possession and hence complaint was lodged by the complainant. Apprehending their arrest, the appellants had moved an anticipatory bail application before Hon’ble High Court whereby the Hon’ble HC has granted an anticipatory bail with a condition to deposit 22,00,000 Lakh Rs. The appellants failed to deposit the same and seek 3 days further time to deposit the amount. In the meanwhile, they approached Hon’ble Apex Court challenging the Hon’ble High Court order.
CONTENTION OF THE APPELLANT
It has been contended on behalf of the appellant that having regard to the decision of this Court in Munish Bhasin vs. State (NCT of Delhi) , the impugned condition imposed for grant of bail requiring deposit of Rs.22,00,000/- (Rupees twenty-two lakh) in the form of FDR in the Trial Court is bad in law and liable to be set aside.
CONTENTION OF THE RESPONDENT
The appeal has been opposed by counsel for the State. According to him, the impugned condition was imposed because the appellant through his counsel had volunteered to keep in deposit Rs. 22,00,000/- (Rupees twenty-two lakh) without prejudice to his rights and contentions. Now that the High Court had proceeded to make its order based on such undertaking and also that the appellant had applied for extension of time which was granted, it is not an appropriate case where this Court should interfere in the exercise of its jurisdiction.
HON’BLE COURT’S OBSERVATIONS
The Division Bench comprising Hon’ble Mr. Justice S. Ravindra Bhatt and Hon’ble Mr. Justice Dipankar Dutta quoted the relevant para of Gurbaksh Singh Sibbia and others vs. State of Punjab, constitution bench judgment related with scope of anticipatory bail, as-
““We find a great deal of substance in Mr Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248], that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.”
Further, Hon’ble court placed its reliance on Mahesh Candra vs. State of U.P wherein it was observed that “As a condition for grant of anticipatory bail, the High Court has recorded the undertaking of the petitioners to pay the victim daughter-in-law a sum of Rs 2000 per month and failure to do so would result in vacation of the order granting bail. […] We fail to understand how they can be made liable to deposit Rs 2000 per month for the maintenance of the victim. Moreover, while deciding a bail application, it is not the jurisdiction of the court to decide civil disputes as between the parties. We, therefore, remit the matter to the High Court to consider the bail application afresh on merit and to pass an appropriate order without imposing any condition of the nature imposed by the impugned order.”
The Hon’ble Division Bench also considered Munish Bhasin (supra) and observed while quoting its relevant paras’ as “It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. There is no manner of doubt that the court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all.
While imposing conditions on an accused who approaches the court under Section 438 of the Code, the court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under Section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under Section 438 of the code.”
His lordships also placed reliance on Sumit Mehta vs. State (NCT of Delhi), Dilip Singh vs. State of Madhya Pradesh and Bimla Tiwari vs. State of Bihar.
Furthermore, in light of these precedents, the Hon’ble Court observed that “Sub-section (2) of section 438 of the Cr. PC 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.”
In view of the above, Hon’ble court disposed of the appeal and remitted back the matter to the Hon’ble High Court.
Case Title:- Ramesh Kumar Vs. The State of NCT Delhi
Case no. :- SLP(Crl.) NO.2358 OF 2023
Order date :- 04.07.2023