Delhi High Court

Manoj Kumar vs State (Govt. Of Nct Of Delhi) on 17 September, 2008

Author:
Gita Mittal

Bench:
Gita Mittal

IN THE HIGH COURT OF DELHI

Crl.Rev.P. No.184/2009

Date of decision: 17th September, 2008

MANOJ KUMAR ... Petitioner
through: Mr. Virendra Kumar, Adv. with
Mr. P.K. Arya, Adv.

VERSUS

STATE (GOVT. OF NCT OF DELHI) ....Respondents
through: Ms. Fizani Husain, APP for the State
with SI Jagdish Yadav, PS Subzi
Mandi.

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
1.Whether reporters of local papers may be allowed to
see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3.Whether the judgment should be reported in the
Digest? Yes

GITA MITTAL, J (Oral)

*

1. By this petition, the petitioner assails an order dated 21st

February, 2009 passed by the learned ASJ whereby the court has

admitted the petitioner to bail subject to his furnishing a bail bond of

Rs.20,000/- with two sureties of the like amount to the satisfaction of

the Metropolitan Magistrate with the condition that at the time of bail,

the applicant shall deposit a draft of Rs.2,00,000/- in court which shall

be released to either of the parties after completion of the trial.

2. The principal ground of challenge to the order passed by the

learned Sessions Judge is premised on a submission of lack of

jurisdiction of the learned court to impose such condition. It is urged

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that there is no statutory provision nor any judicial pronouncement

based whereon the learned court would have the authority in law to

impose such condition upon a person at the time of granting bail to

him or her.

3. In the instant case, the prosecution has contended that the

petitioner stands implicated in a complaint lodged by the Punjab

National Bank, Subzi Mandi Branch, Delhi to the effect that he has

taken payment of Rs.98,000/- from their branch on 30th August, 2007.

A complaint was lodged by the Punjab National Bank that one Ashok

Kumar has taken payment from their branch through a bearer cheque

issued by Ajay Kumar from an account maintained at their branch

office at district Daurala, Meerut. During investigation, a co-accused

Subhodh Kumar disclosed that the petitioner was his relative and they

used to commit theft from the postal department as well as from

persons involved in courier service. Demand drafts were removed

from envelopes and after making alterations, the amounts of these

demand drafts were withdrawn by depositing them in fake and

fictitious accounts opened in different banks. These considerations

have weighed with the learned Additional Sessions Judge who while

admitting the complaint to bail has imposed the condition of deposit of

Rs.2,00,000/- upon the petitioner.

4. This petition has been necessitated for the reason that the

petitioner has not complied with the condition and remains in judicial

custody since 19th September, 2008. The petitioner has contended

that he is the sole earning member of the family which consists of his

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ailing mother. It is further contended that the learned Additional

Sessions Judge has accepted the position that he is not likely to flee

from justice or tamper with witnesses.

5. Ms. Fizani Husain, learned APP for the State has contended that

apart from the instruments in question, the petitioner stands

implicated in 18 different cases relating to 18 cheques in the name of

different persons in Delhi and Rajasthan.

6. These very submissions were placed before the learned court

which has considered the matter and has passed the order dated 21st

February, 2009 admitting the petitioner to bail conditional on making

the above deposit. The challenge in the present case is confined to

the imposition of the conditions of deposit of Rs.2,00,000/- with the

court and the further direction that it could release this amount to

either of the parties after completion of trial.

7. The power to impose any condition while granting bail to any

person is to be found in
Section 437
of the Cr.P.C. which reads as

follows:-

"437. When bail may be taken in case of non-

bailable offence.

1[(1) When any person accused of, or suspected of, the
commission of any non-bailable offence is arrested or
detained without warrant by an officer in charge of a
police station or appears or is brought before a court
other than the High Court or Court of Session, he may be
released on bail, but-

(i) Such person shall not be so released if there
appear reasonable grounds for believing that he
has been guilty of an offence punishable with death

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or imprisonment for life;

(ii) Such person shall not be so released if such
offence is a cognizable offence and he had been
previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for
seven years or more, or he had been previously
convicted on two or more occasions of a non-

bailable and cognizable offence:

Provided that the court may direct that a person referred
to in clause (i) or clause (ii) be released on bail if such
person is under the age of sixteen years or is a woman
or is sick or infirm:

Provided further that the court may also direct that a
person referred to in clause (ii) be released on bail if it is
satisfied that it is just and proper so to do for any other
special reason:

Provided also that the mere fact that an accused person
may be required for being identified by witnesses during
investigation shall not be sufficient ground for refusing to
grant bail if he is otherwise entitled to be released on
bail and gives an undertaking that the shall comply with
such directions as may be given by the court.]

(2) If it appears to such officer or court at any stage of
the investigation, inquiry or trial as the case may be,
that there are not reasonable grounds for believing that
the accused has committed a non-bailable offence, but
that there are sufficient grounds for further inquiry into
his guilt, 2[the accused shall, subject to the provisions of
section 446A and pending such inquiry, be released on
bail], or, at the discretion of such officer or court on the
execution by him of a bond without sureties for his
appearance as hereinafter provided.

(3) When a person accused or suspected of the
commission of an offence punishable with imprisonment
which may extend to seven years or more or of an
offence under Chapter VI, Chatter XVI or Chapter XVII of
the
Indian Penal Code
45 of 1860 or abetment of, or
conspiracy or attempt to commit, any such offence, is
released on bail under sub-section (1) the court may
impose any condition which the court considers
necessary-

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(a) In order to ensure that such person shall attend
in accordance with the conditions of the bond
executed under this Chapter, or

(b) In order to ensure that such person shall not
commit an offence similar to the offence of which
he is accused or of the commission of which he is
suspected, or

(c) Otherwise in the interests of justice.

(4) An officer or a court releasing any person on bail
under sub-section (1), or sub- section (2), shall record in
writing his or its 3[reasons or special reasons] for so
doing.

(5) Any court which has released a person on bail under
sub-section (1), or sub- section (2), may, if it considers it
necessary so to do, direct that such person be arrested
and commit him to Custody.

(6) If, any case triable by a Magistrate, the trial of a
person accused of any non bailable offence is not
Concluded within a period of sixty days from the first
date fixed for - taking evidence in the case, such person
shall, if he is in custody during the whole of the said
period, be released on bail to the satisfaction of the
Magistrate, unless for reasons to be recorded in writing,
the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a
person accused of a non bailable offence and before
Judgment is delivered the Court is of opinion that there
are reasonable grounds for believing that the accused is
not guilty of any such offence, it shall release the
accused, if he is in custody, on the execution by him of a
bond without sureties for his appearance to hear
judgment delivered."

8. Sub-
Section 2
of
Section 438
enumerates some conditions which

can be imposed while granting anticipatory bail and reads as follows:

"438 (2) When the High Court or the Court of Session
makes a direction under sub- section (1), it may include
such conditions in such directions in the light of the facts of
the particular case, as it may thinks fit, including -

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(i) A condition that the person shall make himself
available for interrogation by a police officer and
when required;

(ii) A condition that the person shall not, directly or
indirectly,- make any inducement, threat or promise
to any person acquainted with the facts of the case
so as to dissuade him from disclosing such facts to
the court or to any police officer,

(iii) A condition that the person shall not leave India
without the previous permission of the court;

(iv) Such other condition as may be imposed under
sub-section (3) of
section 437
, as if the bail were
granted -under that section."

9. This court had occasion to consider the expression "such other

conditions as the court considers necessary in the interest of justice"

in a judicial pronouncement reported at 2002 (3) JCC 1721

Jagmohan Singh Kataria & Anr. Vs. State of NCT of Delhi has

been placed. Construing the statutory provisions, it was held that

such conditions have to be read ejusdem generis to the conditions

which are enumerated in sub-
section 3
of
Section 437
or sub-
section
of
Section 438
of the Cr.P.C. The judicial principle which was laid

down by the court is that a criminal prosecution and threat of

incarceration cannot be utilised as a tool for recovery of money from a

person who is implicated in the case. In this behalf, the observation of

this court in this precedent can be usefully adverted to and read as

follows:

"5. A careful consideration of the provisions of
Sections
437(3)
and
438(2)
Criminal Procedure Code shows that
conditions which can be imposed are primarily with a view

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to ensure availability of the accused during investigation,
enquiry or trial and his non-interference with the course of
justice. Other conditions which Court may think fit can
also be imposed but idea should be to ensure his
presence as and when required and his non-interference
with the investigation, enquiry or trial. It is obvious that
other conditions should be "ejusdem generis" to the
conditions which are already enumerated under
Sections
437(3)
or 438 (2)
Criminal Procedure Code
proceedings
for bail are not the forum for settlement of claims or
recovery of outstanding dues. At the stage of
consideration of bail, parties raise claims or counter-
claims which are yet to be decided on merits. Therefore,
there is every possibility of the Court falling into a serious
error by imposing conditions requiring deposit of money
or return of any specific property which issues are to be
decided on merits in appropriate proceedings. That's why
superior courts have often frowned upon the practice of
imposing such condition while granting anticipatory bail or
regular bail. In the caseof Sajani Khanna & Anr. Versus
State 2002 (1) JCC 465, learned Additional Sessions Judge
had imposed the condition of depositing a sum of Rs.15
lacs in the form of FDR in the name of the trial court as
security while granting anticipatory bail for the offence
under
Section 406
/
IPC. Supreme Court observed that
imposition of such condition was unreasonable. In the
case of Sandeep Jain Vs. National Capital Territory of Delhi
Rep. by Secretary, Home Deptt. 2002 (2) JCC (SC) 639
while granting bail to the accused appellant for th e
offence under
Sections 420
and
IPC, learned
Metropolitan Magistrate imposed some conditions. In
compliance to these conditions, one of the sureties issued
three cheques for Rs.2 lacs each to the complainant. On
presentation these cheques were dishonoured. Wife of
the complainant moved Court for cancellation of the bail
whereupon bail was cancelled. Appellant was sent to
prison. The Apex Court observed that such unreasonable
conditions should not be imposed while granting
bail/anticipatory bail.

In view of the above, impugned order whereby the
petitioners were required to submit a FDR of Rs.5 lacs as a
pre-condition of bail is hereby set aside."

10. This very issue also arose for consideration before the Division

Bench of this court in the judgment reported at

MANU/DE/0094/2008=147 (2008) DLT 1=2008 (229) ELT 350

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(Del) Raj Kumar Aggarwal Vs. Director General, Central Excise

& Anr. The Division Bench placed reliance on the principles laid down

by the Apex Court in (2001) 13 SCC 457 Sheikh Ayub Vs. State of

M.P. and (2006) 9 SCC 169 Shyam Singh Vs. State and prior

judgments of this and laid down the legal position as follows:-

"17. Considerable arguments had been generated on the
question of imposition of conditions by the learned Single
Judge. Our attention has been drawn to the use of these
words inter alias under
Section 437(3)
and
438(1)(b)(2)
of
the Cr.PC. We see no reason to make a distinction between
the word conditions of bail or terms of bail either in the
context of
Section 167(2)
or Chapter-XXXIII. They have
been employed as synonymous of each other.
In

Sreenivasulu Reddy v. State of Tamil Nadu
7 (2000) CCR 96
the accused had already deposited a sum of Rupees 35
crore out of the Rupees 50 crore imposed in the Bail Order.
Their Lordships had emphasised that while exercising
jurisdiction under
Section 438(2)
of the Cr.PC, the Court
ought only to impose such conditions/terms for enlarging
an accused on bail as would ensure that the accused does
not abscond. These conditions should not be intended or
calculated to carry out and effect recoveries from the
accused.

In
Sandeep Jain v. State of Delhi
1 (2000) SLT 368
a direction to deposit Rs. 2 lacs apart from furnishing of a
bond of Rs. 50,000 with two solvent sureties was held to be
unreasonable.
In Sheikh Ayub v. State of M.P. (2004) 13
SCC 457 the Supreme Court deleted the direction to
deposit a sum of Rs. 2,50,000/- , which was the amount
allegedly misappropriated by the accused.
Similarly, in

Shyam Singh v. State
(2006) 9 SCC 169 the condition that
the accused should make a payment of Rs. 1,00,000/- per
month after his release on bail was found by the Apex
Court not to be justified. Their Lordships observed that
while it is of course open to a Court to grant or refuse bail it
was impermissible for it to assume that an offence has
been committed even at the stage of grant of bail and to
direct repayment of any amount is both onerous and
unwarranted. The condition of depositing a sum of Rs.
1,00,000/- was struck down.

In
Amarjit Singh v. State (NCT
of Delhi
) 2002(61) DRJ 67, after adverting to Sandeep Jain,
the Supreme Court had recorded that we have no
hesitation in coming to the conclusion that the imposition
of condition to deposit the sum of Rs. 15,00,000/- in the
form of an FDR in the Trial Court is an unreasonable

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condition and, thereforee, we set aside the condition as a
condition precedent for granting anticipatory bail.

A
Division Bench of this Court in
M.R. Narayanan v. State

103(2003) DLT 434, applying the ratio in Sreenivasulu
Reddy also concluded that conditions akin to deposit of
money ought not to be imposed as a ground for grant of
bail; that conditions/terms are imposed solely to ensure the
presence of the accused at the time of trial. The only
situation where money may be deposited in fact arises
from the volition of the accused. This is where the required
person by any Court to execute a bond instead elects,
under
Section 145
of the Cr. PC, to seek permission from
the Court to deposit a sum of money or Government
promissory notes in lieu of executing a bond. This is so
because a mere deposit of money may in some cases
prove to defeat the purpose behind sureties being made
available since the source of the monetary deposit is
untraceable and an accused can abscond if he finds the
deposit to be trivially incommensurate to his freedom."

(underlined supplied)

11. It is trite that the considerations which are required to weigh with

the court while considering the application seeking grant of bail are

extremely well settled. Several judicial precedents are to be found

specially in the context of economic offences wherein a comparison is

drawn which relates to the financial amount involved in the offence.

However, the imposition of a pre-deposit of an amount as a condition

for grant of bail has been repeatedly deprecated. It has been held

that imposition of such condition is not exercise of sound judicial

discretion. (Ref. 2000 Crl.L.J. 464 Avinash Arora & Anr. Vs. State

of UT of Chandigarh & Anr.)

12. The courts have held that a condition which is imposed on a

person who stands incarcerated as a condition for bail would only

aggravate his situation and result in non-availability of the benefit of

the order of bail/anticipatory bail. The Apex Court has held that

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imposition of such a condition is unreasonable and in a given case,

may be both onerous and unwarranted.

13. It would appear that the situation where money may be

deposited may arise from the volition of the accused as for instance, a

person elects under
Section 145
of the Cr.P.C. to deposit money in lieu

of executing a bond. However, the court has cautioned that in some

cases, mere deposit of the money may be a device to defeat the

purpose behind the requirement of sureties being made available to

ensure the appearance of an accused person. The source of the

monetary deposit is not available to the court and would be

untraceable. If the accused finds the deposit to be trivially

incommensurate to his freedom, he would abscond. A solemn duty is

thus cast on the court to take adequate care to ensure exercise of the

discretion on the binding legal principles laid in the above

pronouncements so as to ensure the appearance of the accused

person while setting him at liberty.

14. The petitioner remains in jail despite the order passed on 21st of

February, 2009 admitting him to bail because of his inability to comply

with the condition of deposit on account of pecuniary and financial

hardship. The order does not reflect any connection between the

condition which has been imposed and necessity to ensure

appearance of the applicant. In the light of the binding legal principles

laid down in the judicial pronouncements noted hereinabove, it has to

be held that the court had no jurisdiction to impose such a condition

which was imposed while granting bail to the petitioner.

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15. Accordingly, it is directed that the order dated 21st February,

2009, to the extent that it imposes the condition for deposit of the

amount of Rs.2,00,000/- by the petitioner, shall stand hereby set aside

and quashed.

16. It is further directed that as a result the applicant shall be

released on bail subject to his furnishing a personal bond in the sum of

Rs.25,000/- with two sureties of the like amount to the satisfaction of

the metropolitan magistrate/duty/link magistrate as directed by the

order dated 21st of February, 2009.

This petition is allowed in the above terms.

Dasti.

September 17, 2009 Gita Mittal, J.
aa

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