1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :11.11.2011 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN Crl.R.C.(MD) No.869 of 2011 1.Amjathkhan Gohri 2.Asmathkhan Gohri ...Petitioners/Accused/Nos. 1 & 3 Vs. The State rep.by The Inspector of Police, EOW No.II, Madurai District. Crime No.3/2011 . . .Respondent/Complainant Criminal Revision Case is filed under Section 397 read with 401 of Criminal Procedure Code, praying to call for the records and set aside the order of the learned Special Judge for TANPID Act, cases at Madurai, dated 14.10.2011 made in Crl.M.P.No.2688 of 2011 in so far as the order relating to the condition of paying a cash deposit of Rs.1,00,000/-. For petitioner : Mr.F.Deepak For Respondent : Mr.A.P.balasubramani Government Advocate (Crl.side) O R D E R Heard the learned Counsel for the Petitioners/ Accused Nos. 1 and 3 and the learned Public Prosecutor appearing for the respondent. 2. The revision petition has been preferred under Section 397 r/w Section 401 of Criminal Procedure Code, challenging the order, dated 14.10.2011 made in Crl.M.P.No.2688 of 2011 so far as the order relating to condition directing the petitioners/accused herein to deposit a sum of Rs.1,00,000/-(Rupees One Lakh only) each and surrendering their passport. 3. It is an admitted fact that the petitioners were arrayed as A1 and A3 and a case was registered in Crime No. 3 of 2011, on the file of the respondent police under Sections 406 and 420 IPC and Section 5 of TANPID Act. Subsequently, the petitioners herein filed Crl.M.P.No.2688 of 2011 before the Special Court for TANPID Act cases, at Madurai under Section 167(2) of Criminal Procedure Code, seeking statutory bail. Since, the respondent/ Inspector of Police, E.O.W Police Station, Madurai, has not filed the final report(charge-sheet) within 60 days, the Court below passed an order directing the petitioners/accused to furnish security and also to deposit Rs.1,00,000/- each(Rupees One Lakh only) as condition precedent. 4.Challenging the said order, the present revision has been preferred by the petitioners/ A1 and A3. https://hcservices.ecourts.gov.in/hcservices/ 2 5.Learned Government Advocate appearing for the respondent submits that the petitioners and co-accused were running a partnership firm in the name and style of 'Green Life Investment Company' and they collected huge amount from various investors and failed to return a total sum of Rs.9,48,08,890/- (Rupees Nine Crores and Forty Eight Lakhs Eight Thousand Eight Hundred and Ninety only). Based on the complaint given by the investors, three cases were registered by Coimbatore CCB, in Crime No.35 of 2010 under Sections 4 and 5 of Prize Chit Fund Act and 420 IPC r/w Section 511 IPC and by Bhavani Police Station in Crime No.401 of 2011 under Sections 406, 420 and 506(2) IPC and r/w Section 5 of TNPID Act, 1997, and by Tirunelveli CCB in Crime No.24 of 2011 under Section 5 of TNPID Act, 1997 and this case is registered by Madurai EOW-II in Crime No.4 of 2011 under Sections 406,420 and 506(ii) IPC and r/w Section 5 of TNPID Act, 1997. 6.According to the learned Government Advocate, though the petitioners are entitled to get statutory bail under Section 167(2) of Criminal Procedure Code on the ground that the charge-sheet was not filed within the statutory time limit, the Court can impose reasonable conditions, for which there is no legal bar. 7.Learned Counsel appearing for the petitioners relied on a decision of this Court in Sathyanarayanamoorthy -Vs- The State Rep.by Inspector of Police reported in [2009(2)T.N.L.R.100(Mad)(MB)] and submitted that while granting anticipatory bail, condition imposed on the petitioner to pay a sum of Rs.2,00,000/- to the de-facto complainant was found onerous and unreasonable and accordingly, the condition was modified and the petitioner therein was directed to pay a sum of Rs.22,600/-(Rupees Twenty Two Thousand Six Hundred only) and to execute a bond for Rs.10,000/- (Rupees Ten Thousand only). The term "onerous condition" has to be decided based on the facts and circumstances of each case. 8. It is an admitted fact that four cases are pending as against the petitioners and other accused including this case and the total amount involved in these cases is more than Rs.9.48 Crores. As pointed out by the learned Public Prosecutor, it cannot be disputed that though the accused are entitled to get statutory bail under Section 167(2) of Criminal Procedure Code, if final report/ charge-sheet has not been filed within the stipulated time, the Court can impose reasonable condition that could be reasonable and such condition, could be decided based on the facts and circumstances of the case. When the amount due and payable as per the prosecution case is more than Rs.9.48 Crores, it could not be said that imposing condition to deposit Rs.1,00,000/- (Rupees One Lakh only) before the Court below by each of the petitioners as onerous or unreasonable. 9. Learned Counsel appearing for the petitioners submitted that the properties of the petitioners were attached by the respondent, for which there is no supporting documents produced by the petitioners. 10. Learned counsel appearing for the petitioners subsequently submits that the petitioners are ready and willing to deposit a sum of Rs.1,00,000/- cash, as directed by the Court below in the impugned order. However, learned counsel for the petitioners contended that the passport of A1 could not be surrendered, since the passport of first petitioner/A1 https://hcservices.ecourts.gov.in/hcservices/ 3 and the passport of his wife Hepsiba Merlin Sofi were taken by the miscreants, namely Marakadai Abbas, C.D.Abbas, Sardar, Imthieyes, Imran, Savies, Thavamani, Karthikeyan, Muthu, Abdullah and Kitta Selvam at Hydrabad. He has also specifically mentioned the names of the said persons and for the aforesaid submission there is no supporting materials available on record. The first petitioner has further stated in his affidavit sent through Jailor, Central Prison, Madurai stating that he could not file a complaint since he is in prison. Further, through his mother, he sent a representation to the Panjara Hills Police Station forwarded by the jail authorities, Central Prison, Madurai to the passport Office, Trichy on 24.09.2011. The first petitioner has produced a Xerox copy of his passport and has given an undertaking that he will not flee to any other country from India till the disposal of the trial. The undertaking given by the first petitioner/A1 is recorded and has no objection to impound the passport No.E.3536005 issued at Trichy Passport Office on 12.12.2002. 11.Considering the averments contained in the affidavit filed by the first petitioner/A1 and the fact that there is no tenable objection from the learned Government Advocate(Crl.side) appearing for the respondent, I find it reasonable to pass a conditional order. 12.In support of his contention, learned counsel appearing for the petitioner relied on a decision in Alluvdin vs. The Inspector of Police, Vandhavasi Police Station, Thiruvennamalai District, reported in 2001-2 L.W. (Crl.) 632, wherein, this Court held that while granting bail under chapter 33 of Cr.P.C., the provisions found therein have to be scrupulously followed by the Subordinate Courts, referring to Section 441 Cr.P.C. which reads as follows: “ Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.” It is a well-settled proposition of law that while granting statutory bail under Section 167(2) Cr.P.C. onerous condition which could not be complied with by any ordinary person shall cannot be imposed. However, in the instant case, the allegation made against the petitioners is that the petitioners herein and the co-accused have cheated various persons to a total sum of Rs.9,48,00,000/-. In the aforesaid circumstances, directing the petitioners/accused to deposit a sum of Rs.1,00,000/- in cash would not be considered as onerous or unreasonable. Similarly in Sandeep Jain vs. National Capital Territory of Delhi Rep. by Secretary, Home Department, reported in 2000(1) Supreme Court (Cr.) 63 the Hon'ble Supreme Court as held that “1... 2... 3... 4. We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs.2 https://hcservices.ecourts.gov.in/hcservices/ 4 lacs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. .......” In Moti Ram and others vs. State of Madhya Pradesh reported in (1978) 4 Supreme Court Cases 47, the Hon'ble Supreme Court as held as follows: “There is no definition of bail in the Code of Criminal Procedure, although offences are classified as bailable and non-bailable. Law, at the service of life, must respond interpretatively to raw realities and make for liberties. 1) The Court, under the Code of Criminal Procedure, can enlarge on his own bond without sureties, a person undergoing incarceration for a non-bailable offence either as under-trial or as convict who has appealed or sought special leave. (a) Section 436 of the Code speaks of bail but the proviso makes a contradistinction between bail and own “bond without sureties”. Even here there is an ambiguity, because, the proviso comes in only if, as indicated in the substantive part, the accused, in the case of a bailable offence, prepared to give bail. The word 'bail' suggests “with or without sureties”, and bail bond in Section 436(2), covers own bond. Section 437(2) speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and women. Section 445, read with marginal note, suggests that deposit of money will do duty for bond “with or without sureties”. Section 441(1) of the Code appears as a stumbling block in the way of liberal interpretation of bail as covering own bond with and without sureties. But incisively understood, the section provides for both the bond of the accused and the undertaking of the surety being conditioned in the manner mentioned in the sub-section. To read 'bail' as including only cases of release with sureties will stultify the sub-section, for then, an accused released on his own bond without bail, i.e. surety, cannot be conditioned to attend at the appointed place. Section 441(2) uses the word 'bail' to include “own bond” loosely as meaning one or the other or both. Moreover, an accused in judicial custody may be released by the court to further the ends of justice and nothing in Section 441(1) compels a contrary meaning.” 13.Considering the facts and circumstances and the submissions made by both the learned counsel, the order, dated 14.10.2011 made in Crl.M.P.No.2688 of 2011 passed by the learned Special Judge for TANPID Act Cases at Madurai is modified and accordingly, the petitioners are directed to deposit Rs.1,00,000/- each as decided by the Court below. So far as surrendering of passport of A1 is concerned, considering the affidavit filed by the petitioner/A1 forwarded through Jailor, Central Prison, Madurai, the passport of the first petitioner/A1, (1) the https://hcservices.ecourts.gov.in/hcservices/ 5 passport No.E-3536005 issued on 12.12.2002 by the Passport Office, Trichy it is ordered to impound the Passport. (2) Accordingly direction is issued to the concerned authority to impound the Passport of A1 undertaking given by the first petitioner not to leaving from the country without getting permission of the Court is also recorded, (3) other conditions imposed by the Court below shall stand valid for compliance. 14.With the above said observations, the Criminal Revision petition is allowed. Sd/- Assistant Registrar (CO) / True Copy / Sub Assistant Registrar To 1.The Inspector of Police, EOW No.II,Madurai District. 2.The learned Special Judge for TANPID Act, cases at Madurai, 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Am SR : 07.12.2011 : 5p/4c Crl.R.C.(MD) No.869 of 2011 11.11.2011 https://hcservices.ecourts.gov.in/hcservices/