N THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Case No. 2 of 2008 Pradeep Kumar Chaudhari …… Applicant Versus State of Uttarakhand and another ..…. Respondents Mr. Vinod Sharma, Advocate for the Applicant. Mr. G.S. Sandhu, Government Advocate for respondent No. 1. None for respondent No. 2. Hon’ble J.C.S. Rawat, J. Mr. Vinod Sharma, Advocate for the applicant. Mr. G.S. Sandhu, Government Advocate for respondent No. 1. None for respondent No. 2. 2. The applicant initially filed petition u/s 482 Cr.P.C. in this court which was rejected by this court as not maintainable in view of the judgment in the case of Om Prakash and others Vs. State of U.P. reported in 1983 ALL. L.J. p/1370. So, this application has been filed by the applicant. 3. The applicant has moved this application u/s 439 (1) (b) Cr.P.C. for setting aside the condition imposed by the learned Sessions Judge while granting the bail to the applicant. The condition which was imposed was to pay the amount of Rs.1,05,000/- to the first informant in the bail order. The bail application was allowed with the above condition. The learned Sessions Judge also directed that the applicant be released on bail on furnishing a personal bond of Rs. 10,000/- and two sureties in the like amount. The learned counsel for the applicant contended that the order passed by the learned Sessions Judge is virtually amount to denial of bail itself; the applicant could not pay the said amount & no civil suit is pending for the recovery of the said amount; and the criminal court is not competent to pass such order. I am unable to appreciate the order passed by the learned Sessions Judge imposing the onerous condition that the accused at the F.I.R. 2 stage should pay a sum of Rs. 1,05,000/- to be set at liberty. The similar controversy has been dealt with by the Hon’ble Apex Court in the case of Keshab Narayan Banerjee and another Vs. State of Bihar reported in AIR 1985 SC p/1666. Para 2 of the judgment is quoted hereunder:- “2. Heard counsel for the parties. The condition imposed by the High Court for enlarging Keshab Narayan Banerjee, appellant No.1 on bail, namely, that he should furnish security for rupees one lakh in cash or in fixed deposit of any nationalized bank in Bihar with two sureties residing in the State of Bihar each for a like amount appears to be excessively onerous. In the circumstances of this case, it virtually amounts to denial of bail itself. It is, therefore, ordered that appellant No.1 shall be enlarged on bail on his furnishing a bail bond of Rs.25,000/- with two sureties each for the like amount to the satisfaction of the learned Special Judge. The learned Special Judge need not insist that the appellants should produce sureties who are residing in Bihar only. The order of the High Court shall stand modified accordingly” 4. The Hon’ble Apex Court in the case of Sandeep Jain Vs. National Capital Territory of Delhi reported in AIR 2000 SC p/714 has held at para 4 as under:- “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 lakhs 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. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs .2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police.” 3 5. In the background of above proposition of law, the condition imposed by the learned Sessions Judge was unjustified and liable to be set aside. Therefore, the condition to pay an amount of Rs. 1,05,000/- to the applicant/to the first informant is hereby set aside. The rest of the bail order would be carried out as directed by the learned Sessions Judge. 6. The application is disposed of accordingly. (J.C.S. Rawat, J.) 11.09.2008 Shiv