Condition precedent for Bail should be reasoned and cannot be out of the Financial Capacity of the Applicant: Bombay High Court

 on 05 05 2021 on 22 03 : 1 : 15.BA 168 21.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL BAIL APPLICATION NO.168 OF 2021Mohammadali Jamaluddin Saiyyad@ Raunak Suresh Madhiwal .... ApplicantVersusThe State of Maharashtra.... Respondent…..WITHINTERIM APPLICATION NO.1182 OF 2021INCRIMINAL BAIL APPLICATION NO.168 OF 2021Prashant Damodar Katkade ...Applicant IntervenorIN THE MATTER BETWEEN:Mohammadali Jamaluddin Saiyyad@ Raunak Suresh Madhiwal .... ApplicantVersusThe State of Maharashtra.... Respondent Dr. Abhinav Chandrachud Advocate i b. R.V. Gupta for theApplicant.Mr. Chetan S. Damre Advocate for the Intervenor.Mr. Ajay Patil APP for the Respondent State. CORAM:SARANG V. KOTWAL J.DATE:05th MAY 2021 on 05 05 2021 on 22 03 : 2 : 15.BA 168 21.odtP.C. :1.This is an application for setting aside the condition ofdepositing Rs.22 Lakhs as a condition precedent for being releasedon bail. The second prayer is for the Applicant’s release on bail inconnection with C.R.No.I 101 2018 registered at Manmad CityPolice Station District Nashik.2.Heard Dr. Abhinav Chandrachud learned Counselfor the Applicant Shri Chetan Damre learned Counsel for theIntervenor and Shri Ajay Patil learned APP for the State.3.The Applicant was arrested in connection with theabove offence on 9.3.2019. The offence was registered underSections 420 120 B read with 34 of the Indian Penal Code.4.The FIR was lodged by one Prashant Katkade on31.5.2018. He has stated that he was in the business ofconstruction and development. He wanted a project loan forhis business. He came in contact with one of the accusedPrakash Jadhav. The informant met him at Manmad. Theaccused Prakash Jadhav represented to the informant that he on 05 05 2021 on 22 03 : 3 : 15.BA 168 21.odtwas representative of M s. Cobra Financial Solution BranchWalsad Gujarat. He told the informant that through the ChiefOfficer of the said financial company he could get the loan ofRs.5 Crores @ 6% per annum for the informant’s project atNashik. The loan was to be repaid within five years. The FIRmentions that Prakash Jadhav represented to the informantthat the present Applicant was the Chief Officer of theFinancial Company. Thereafter the present Applicant Prakash Jadhav Prakash Parmar and Sajid Ajmeri met him atManmad and decided to go ahead with their transaction.They inspected the documents and showed willingness togive loan. The informant was told by Prakash Parmar that heshould meet the Applicant at hotel Fountain on Thane by passroad. The informant paid in all Rs.22 Lakhs in cash by way ofcommission to obtain loan of Rs.5 Crores. However no loanwas sanctioned in his favour and he has lost that amount ofRs.22 Lakhs. On this basis the FIR is lodged.5.The Applicant was arrested as mentioned earlier.From the record it appears that the charge sheet was not filed on 05 05 2021 on 22 03 : 4 : 15.BA 168 21.odtwithin time after the Applicant’s arrest and at the firstinstance the Judicial Magistrate First Class Manmad Cityvide his order dated 10.5.2019 granted bail to the Applicantunder the provisions of Section 167(2) of Cr.P.C. in the sum ofRs.50 000 with one or two solvent sureties in the likeamount. Vide the same order notice was issued to theinvestigating officer to explain within seven days as to whythe charge sheet was not filed within prescribed time. 6.Dr. Chandrachud appearing for the Applicantsubmitted that after this order was passed on 10.5.2019 within four days i.e. on 14.5.2019 charge sheet was filed and therefore the Applicant could not be released on bail.Thereafter the Applicant preferred another application for bailunder Section 439 of Cr.P.C. which was allowed by theAdditional Sessions Judge Malegaon vide his order dated21.8.2020 in Criminal Bail Application No.98 2020. In theoperative part of the order the Applicant was directed todeposit Rs.22 Lakhs before the Magistrate as a conditionprecedent for his release on bail. on 05 05 2021 on 22 03 : 5 : 15.BA 168 21.odt7.The Applicant was unable to comply with thiscondition and therefore moved Criminal Misc. ApplicationNo.25 2020 for relaxation of that particular condition andalso for relaxation of condition of reporting to the policestation. This Application was rejected and therefore theApplicant has preferred the present Application before thisCourt.8.Dr. Chandrachud submitted that the Applicantdeserves to be released on bail pursuant to the order passedby the J.M.F.C. Manmad City under Section 167(2) of Cr.P.C..That order was passed on 10.5.2019 and the charge sheet wasfiled shortly thereafter on 14.5.2019. It cannot be termed asreasonable time enabling the Applicant to comply with thedirections of learned Magistrate for his release on bail. Hesubmitted that even under Section 167(2) of Cr.P.C. theApplicant is entitled to be released on bail as it is his statutoryright.9.Dr. Chandrachud further submitted that evenotherwise on merits the Applicant deserves to be released on on 05 05 2021 on 22 03 : 6 : 15.BA 168 21.odtbail. He relied on the fact that all the three other accused arereleased on bail. Co accused Prakash Jadhav was granted bailby this Courtvide order dated21.12.2018 passed in Bail Application No.2942 2018. Co accused Sadiq Bhai was granted bail by Additional SessionsJudge Malegaon vide his order dated 28.2.2019 passed inBail Application No.111 2019. Another co accused PrakashParmar was granted bail by this Courtvide order dated 26.6.2020 passed in LD VC IA 93 20 inBA 2389 2019. Dr. Chandrachud therefore submitted thaton either of these grounds the Applicant deserves to bereleased on bail.10.Learned Counsel for the intervenor Shri Damrestrongly opposed this Application. He submitted that at thefirst instance when the Applicant was granted bail underSection 167(2) of Cr.P.C. he had not complied with thedirections and therefore his right to be released on bailunder those conditions stood extinguished. He furthersubmitted that on merits the Applicant does not deserve to on 05 05 2021 on 22 03 : 7 : 15.BA 168 21.odtbe released on bail as he was the master mind behind thisoffence. He submitted that the Applicant has two passportsand therefore possibility that the Applicant may abscond ifgranted bail cannot be ruled out. 11.Shri Damre justified the order passed by theSessions Court by imposing pre condition of depositing Rs.22Lakhs. He further submitted that the role of the presentApplicant is different from those of the co accused who havebeen granted bail. Shri Damre submitted that there are nineantecedents against the present Applicant in the States ofMaharashtra and Gujarat.12.Shri Ajay Patil learned A.P.P. fairly submitted thatthe condition asking the Applicant to deposit Rs.22 Lakhs as apre condition is onerous and the Hon’ble Supreme Court inmany judgments has criticized such approach. He furthersubmitted that on merits the Applicant does not deserve tobe released on bail.13.I have considered all these submissions. As rightly on 05 05 2021 on 22 03 : 8 : 15.BA 168 21.odtsubmitted by Dr. Chandrachud the Applicant was granted bailunder the provisions of Section 167(2) of Cr.P.C. on10.5.2019. Within four days the charge sheet was filed andit is presumed that the Applicant’s right to be released on bailstood extinguished. This may not be correct position in law.The Applicant was not given sufficient and reasonableopportunity to furnish sureties as was directed. Therefore itwould not be proper to observe that the Applicant had notcomplied with the directions and therefore had forfeited hisright to be released on bail under Section 167(2) of Cr.P.C..However the Applicant has not taken any further steps byapproaching any higher forum in that behalf and insteadpreferred an Application under Section 439 of Cr.P.C. 14.In that behalf it is necessary to refer to the FIR.The FIR clearly sets out the manner in which the offence wascommitted. Though the FIR does indicate that the Applicantwas shown to be the Chief Officer of the concerned FinancialFirm the earliest representation was made by co accusedPrakash Jadhav. The other accused had played their on 05 05 2021 on 22 03 : 9 : 15.BA 168 21.odtrespective parts and it cannot be said that the offence wascommitted by the present Applicant single handedly on hisown. 15.The orders passed by this Court and SessionsCourt granting bail to the co accused do bear someimportance in the context of the case. Therefore on theparity also the Applicant deserves to be released on bail in thepresent case albeit with some conditions to ensure hispresence during trial. This is particularly necessary in view ofthe submissions made by Shri Damre that there areantecedents against the Applicant and he has two passports.16.The crucial aspect in this case is about impositionof onerous condition directing the Applicant to deposit Rs.22Lakhs as a condition precedent for bail. In this context theobservations of learned Additional Sessions Judge Malegaonare interesting. His reasoning is encapsulated only in oneparagraph i.e. Paragraph No.5 which reads thus :“05] Perused the documents on record. It appearsfrom the Say that investigation is completed on 05 05 2021 on 22 03 : 10 : 15.BA 168 21.odtcharge sheet is filed. Accused is charged for theoffence punishable under section 420 120(B) r w.S. 34 of I.P.C. The maximum sentence providedis of seven years imprisonment. Under suchcircumstance as per mandate of the Hon’bleSupreme Court in Covid 19 Pandemic situation applicant is entitled for the bail. It is alsoreflected from the documents that applicant ishabitual to change his name. There is a everypossibility that he may abscond and will notavailable for the trial. Under such circumstance Iam of the opinion that stringent conditions beimposed on him while enlarging him on bail. Inresult I pass the following order.”17.There is absolutely no indication of learnedJudge’s inclination to impose such a heavy condition. There isno discussion in that respect at all. Obviously the condition isonerous and it is prejudging the issues between the partieswithout trial. This condition proceeds on the footing that theFIR is the complete truth without necessity of any furtherproof. This approach obviously is not permissible. As far asimposing onerous condition is concerned the Hon’bleSupreme Court in many judgments has held that such anapproach is not permissible.1 on 05 05 2021 on 22 03 : 11 : 15.BA 168 21.odt18.In the case of Dataram Singh Vs. State of UttarPradesh and another as reported in3 SCC 22 theHon’ble Supreme Court has observed that the conditions forthe grant of bail ought not be so strict as to be incapable ofcompliance thereby making the grant of bail illusory.19.In the case of M.D. Dhanapal Vs. Staterepresented by the Inspector of Police as reported in6SCC 743 the Hon’ble Supreme Court in Paragraph 6 hasobserved that it is well settled that bail cannot be madeconditional upon heavy deposits beyond the financial capacityof an Applicant for bail. . In the present case though the order of bail waspassed on 21.8.2020 the Applicant is still in custody as hewas unable to comply with the directions of depositing Rs.22Lakhs. This obviously means that such condition is beyond hisfinancial capacity thereby practically denying him relief ofbail.20.In another case of Dilip Singh Vs. State of Madhya1 on 05 05 2021 on 22 03 : 12 : 15.BA 168 21.odtPradesh and another as reported in2 SCC 779 theHon’ble Supreme Court in Paragraph 4 has held that aCriminal Court exercising jurisdiction to grantbail anticipatory bail is not expected to act as a recoveryagent to realise the dues of the complainant and that too without any trial.21.Thus it can be seen that in the present case thecondition directing the Applicant to deposit Rs.22 Lakhs as acondition precedent for release on bail cannot be sustained.Learned Judge has not given any reasoning whatsoever forarriving at that particular figure. It is assumed that since theFIR mentions that the amount involved was Rs.22Lakhs therefore such an amount appeared in the operativepart. But there is no other discussion in the body of theorder. The entire approach of learned Judge is erroneous. 22.As mentioned earlier considering merits of thecase and also the fact that the Applicant was entitled to bereleased on bail under Section 167(2) of Cr.P.C. I am inclinedto grant bail to the Applicant on certain conditions but not1 on 05 05 2021 on 22 03 : 13 : 15.BA 168 21.odton the condition of directing him to deposit Rs.22 Lakhs. Theantecedents of the Applicant and the fact that he could not beimmediately arrested will also have to be taken into account.Dr. Chandrachud stated on instructions that the Applicant isready and willing to furnish local solvent sureties. Hence thefollowing order :ORDER(i) The operative part of the order dated 21.8.2020 passedby the Additional Sessions Judge Malegaon in CriminalBail Application No.98 2020 is set aside. However theApplicant is granted bail on following conditions.(ii) The Applicant is directed to be released on bail inconnection with C.R.No.I 101 2018 registered withManmad City Police Station District Nashik. on hisfurnishing a PR bond in the sum of Rs.50 000 with one or two local solventsureties in the like amount.(iii) The Applicant shall deposit his passport if any with the1 on 05 05 2021 on 22 03 : 14 : 15.BA 168 21.odtinvestigating officer before being released on bail.(iv) The Applicant shall furnish his residential address andcontact number before being released on bail.(v) The Applicant shall attend the concerned police stationon first Monday of every month till framing of thecharges.(vi) The Applicant shall attend the trial Court on every singledate except when prevented by a reasonable cause.(vii) The Application is disposed of accordingly. Withdisposal of this Application Interim ApplicationNo.1182 2021 is also disposed of.(SARANG V. KOTWAL J.)Deshmane (PS)1 

Summary: When the applicant is being given bail on condition precedent, the order shall discuss and provide reasons for the same. It should also be within the financial capacity of the applicant. This judgment was passed in the case of Mohammadale Jamaluddin Saiyyad @ Raunak Suresh Madhiwal vs. The State of Maharashtra [BA/168/2021] by a Single Bench consisting of Hon’ble Shri Justice S. V. Kotwal. The applicant was arrested for the offenses under section 420, 120-B read with section 34 of the Indian Penal Code. The FIR was lodged by Prashant Katkade who was in the construction and development business. He wanted a project loan during which he came in contact with one of the accused. The accused represented himself as representative of M/s. Cobra Financial Solution, Gujarat. He stated that a loan of Rs. 5 crores could be taken @ 6% per annum which had to be repaid within 5 years. Rs. 22 lakhs was paid to obtain Rs. 5 crores, but no loan was sanctioned and loss of the Rs. 22 Lakhs occurred for which the FIR was lodged. Since the charge sheet was not filed, the judicial magistrate first Cass under section 167(2) of Cr.P.C. granted bail in the sum of Rs. 50,000 and a notice was issued to the investigating order as to why the charge sheet was not filed. However, since the charge sheet was filed within four days of the order, the applicant was not released on bail and filed for the same under section 439 of Cr.P.C. The Additional Sessions Judge granted bail provided Rs. 22 lakhs was deposited before the Magistrate. When the applicant failed to do the same, they applied for relaxation of the above condition and condition of reporting to the police station. The same was rejected. After hearing the counsels, the Hon’ble High Court of Bombay opined that under section 167(2) of Cr.P.C. the applicant was not given the opportunity to furnish the sureties and cannot be held that the Applicant failed to comply with the directions. At the same time, the Applicant did not approach any higher authority in this regard but preferred a bail under section 439 of the code. Further, since the co-accused was released on bail, on parity the applicant deserved to be released on bail with conditions to ensure he is present during the trial. The Bombay High Court went on to understand the imposition of Rs. 22 Lakhs; on doing so it came to light that there was no reasons or discussion in the order with regards to the reasons for such a heavy imposition. It held that the condition was an onerous on and based on the presumption that FIR is a complete truth which is not permissible. Relying on Supreme court judgments the court held that the condition for bail cannot be sustained since it is out of the financial capacity of the applicant and thereby making the bail illusory.