Bombay High Court
Sultan Kamruddin Dharani vs The Union Of India on 19 September, 2008
Bench: A.S. Oka
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.865 OF 2007.
2007
Sultan Kamruddin Dharani. ..Petitioner.
versus
1. The Union of India.
2. The Deputy Director, DRI, Mumbai.
3. The State of Maharashtra. ..Respondents.
....
Mr.Uday Warunjikar & Mr.S.N. Kantawala, for the Petitioner.
Ms. Purnima Kantharia, for the Respondent No.1.
Mr.D.P.Adsule, APP, for the Respondent-State.
....
CORAM : A.S. OKA, J.
IS RESERVED
THE DATE ON WHICH JUDGMENT
: 30TH AUGUST 2008.
THE DATE OF WHICH JUDGMENT
IS PRONOUNCED : 19TH SEPTEMBER 2008.
1. The Petitioner has invoked the power of this
Court under section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as "the said
Code of 1973") for challenging that part of the order
dated 15th April 2006 passed by the learned Additional
Chief Metropolitan Magistrate, 3rd Court, Esplanade,
Mumbai, by which the Petitioner was directed to deposit
the passport with the Customs Department and by which
the petitioner was directed not to leave India without
the permission of the Court in writing. The question
which is raised for consideration in this Petition is
whether a Court under the said Code of 1973 while
granting bail in a bailable offence can impose a
condition of surrender of passport and further condition
that the accused shall not travel abroad without
permission of the Court.
2. The case of the Petitioner is that the officers
of the Directorate of Revenue Intelligence arrested the
Petitioner under
ig section 104 of the Customs Act, 1962
(hereinafter referred to as "the said Act of 1962") for
an alleged offence punishable under section 135(1)(ii)
of the said Act of 1962. The Petitioner was arrested on
12th April 2006. A remand application was filed before
the learned Magistrate on the same day. The learned
Magistrate granted remand though it was contended that
the offence was a bailable offence. The Petitioner
applied for bail and by order dated 15th April 2006, the
learned Magistrate enlarged the Petitioner on bail. The
relevant part of the order passed by the learned
Magistrate reads thus :-
"As far as accused Sultan K. Dharani, he be
released on bail on executing PR & SB of
Rs.three lacs with permission to deposit cost
security in lieu of SB.
If he possess the passport, then he shall
deposit it with the department and if not, then,
shall make an affidavit to that effect,
immediately, on his release.
He
shall not leave India without permission of
the Court in writing."
3. Criminal Application No.1564/2006 was filed by
the Petitioner in this Court seeking modification of the
aforesaid condition. In this Petition, it is stated
that the said Criminal Application was withdrawn by the
Petitioner. It is stated in the Petition that without
prejudice to his rights and contentions, the Petitioner
has applied under section 137(3) of the said Act of 1962
for compounding of the offence and the said Application
is still pending. The Petitioner has stated in the
Petition that the Petitioner has received an invitation
to visit New York and therefore, he has filed the
present Petition.
4. The submission of the learned Counsel for the
Petitioner is that the offence alleged against the
Petitioner was under section 135(1)(ii) of the said Act
of 1962. He submitted that as section 123 of the said
Act was not applicable to the goods involved in the
case, the offence was bailable. He placed reliance on a
decision of this Court in the case of Subhash Choudhary
v/s Deepak
Jyala [2005 (179) E.L.T. 532 (Bom.)]. He
also placed reliance on a decision of the learned Single
Judge of Kerala High Court in support of the contention
that while granting bail in a bailable offence, the
learned Magistrate cannot impose any condition and in
particular, the condition of surrender of passport. He
relied upon the decision of the Apex Court in the case
of State of Gujarat and Another v/s Lalsingh Kishansingh
[AIR 1981 SC page 368]. He submitted that the Apex
Court has held that if an accused was arrested for
commission of a bailable offence, it is the legal
obligation of the police to release the accused on bail
in view of section 496 of the Code of Criminal
Procedure, 1898 (hereinafter referred to as 'the old
Code'). He also placed reliance on a decision of the
Apex Court in the case of T. Barai v/s. Henry Ah Hoe
and Another [1983 (1) SCC 177]. He submitted that under
section 436(1) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the said Code'), there is
an unfettered right vesting in the accused to be
enlarged on bail when he is ready to offer bail.
5. The learned Counsel appearing for the first and
the
second Respondents did not dispute that the offence
alleged against the Petitioner was a bailable offence.
She invited my attention to various averments made in
the affidavit-in-reply of Shri K. A. Shaikh, Assistant
Director, Directorate of Revenue Intelligence of Mumbai.
She submitted that the case involves a large scale
conspiracy relating to the import of goods of the value
of Rs.150 crores involving duty evasion of Rs.65 crores.
She submitted that there is an apprehension that the if
the Petitioner is permitted to travel abroad, he will
not remain available for the purpose of investigation
and it will be very difficult to secure his presence.
She placed reliance on a decision of the Apex Court in
the case of Hazari Lal Gupta v/s Rameshwar Prasad and
another [1972 Cri.L.J. 298]. She also relied upon
another decision of the Apex Court in the case of Talab
Haji Hussain v/s. Madhukar Purshottam Mondkar and
Another [1958 Cri.L.J. 701] in support of her
submission that in a given case, while enlarging an
accused on bail where offence alleged is bailable, the
Court can impose suitable conditions. She submitted
that there is no prohibition provided in the Statute
which prevents a Court from imposing suitable
conditions.
6. I have carefully considered the submissions. It
is not in dispute that the offence alleged against the
Petitioner is a bailable offence. The question is
whether the learned magistrate while enlarging the
Petitioner on bail in a bailable offence, could have
imposed conditions such as a condition requiring the
accused to surrender his passport. The question is
whether the learned Magistrate could have imposed a
condition that accused will not travel abroad without
prior permission of the concerned Court.
7. Under the said Code, the offences have been
categorised into two classes. One is of the offences
which are bailable and the second is of the offences
which are non-bailable. The powers of the Court to
grant bail in both the categories of the cases are in
Chapter XXXIII of the said Code of 1973. Section 436 of
the said Code read thus :-
"436.
436. In what cases bail to be taken.- (1) When
any person other than a person accused of a
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, and is prepared at any time while in
the custody of such officer or at any stage of
the proceeding before such Court to give bail,
such person shall be released on bail :
Provided that such officer or Court, if he or it
thinks fit, [may, and shall, if such person is
indigent and is unable to furnish surety,
instead of taking bail] from such person,
discharge him on his executing a bond without
sureties for his appearance as hereinafter
provided :
Provided further that nothing in this section
shall be deemed to affect the provisions of
sub-section (3) of section 116 [or section
446-A].
[Explanation .- Where a person is unable to give
bail within a week of the date of his arrest, it
shall
be a sufficient ground for the officer or
the Court to presume that he is an indigent
person for the purposes of this proviso.]
(2) Notwithstanding anything contained in
sub-section (1), where a person has failed to
comply with the conditions of the bail-bond as
regards the time and place of attendance, the
Court may refuse to release him on bail, when on
a subsequent occasion in the same case he
appears before the Court or is brought in
custody and any such refusal shall be without
prejudice to the powers of the Court to call
upon any person bound by such bond to pay the
penalty thereof under section 446."
8. Sub-section (1) of section 436 provides that
when any person other than a person accused of a
non-bailable offence is arrested, or detained without
warrant by an officer incharge of a Police Station, or
appears or is brought before the Court, and is prepared
at any time while in the custody of such officer or at
any stage of the proceeding before the Court to give
bail,
the said person shall be released on bail. Thus,
the said provision is applicable to all offences which
are not non-bailable. The offences which are
non-bailable are obviously the bailable offences. Thus,
a person alleged of commission of a bailable offence is
detained or arrested by an officer incharge of a police
station, even the said police officer is under an
obligation to release the person on bail. If such
person arrested is brought before the Court, he is
entitled to be enlarged on bail as a matter of right,
provided he is prepared to give bail. Even in a case
where a person who is accused of a bailable offence
appears before the Court on his own, he is entitled to
released on bail as a matter of right provided he offers
to give bail. Therefore, in a case where a person is
accused of commission of a bailable offence, there is no
choice to the officer who has detained him or arrested
him and to the Court before which he is produced to deny
bail to such person provided the said person is ready to
offer the bail.
9. Section 437 of the Code of 1973 gives power to
the Courts other than this Court and the Court of
Sessions to
release an accused on bail in case of
non-bailable offence. Section 439 deals with the power
of Sessions Court and this Court of grant of bail.
Section 439(1) reads thus :-
"439.
439. Special powers of High Court or Court of
Session regarding bail.- (1) A High Court or
Court of Session may direct -
(a) that any person accused of an offence and in
custody be released on bail, and if the offence
is of the nature specified in sub-section (3) of
section 437, may impose any condition which it
considers necessary for the purposes mentioned
in that sub-section;
(b) that any condition imposed by a Magistrate
when releasing any person on bail be set aside
or modified :
Provided that the High Court or the Court of
Session shall, before granting bail to a person
who is accused of an offence which is triable
exclusively
ig by the Court of Session or which,
though not so triable, is punishable with
imprisonment for life, give notice of the
application for bail to the Public Prosecutor
unless it is, for reasons to be recorded in
writing, of opinion that it is not practicable
to give such notice."
10. Under clause (a) of sub-section (1) of section
439, there is a power vesting in this Court to impose
any condition which is considered to be necessary where
the offence alleged is punishable with imprisonment
which may extend to 7 years or more or where the alleged
offence is under Chapters VI, XVI or XXVII of the Indian
Penal Code or abatement of, or conspiracy or attempt to
commit, any such offence. Under Clause (b) of
sub-section (1) of section 439, the concerned Court or
this Court has jurisdiction to set aside or modify a
condition imposed by the Magistrate while releasing a
person on bail. From section 437 and 439 of the said
Code, it is apparent that when an accused is alleged of
commission of a non-bailable offence, the bail is not a
matter of right. In a given case the accused may
acquire a
right to be released on bail on account of
failure to file the charge-sheet within specified time.
While granting bail either under section 437 of 439, the
Court can impose appropriate conditions.
11. It will be necessary at this stage to refer to
section 441 of the said Code which reads thus :-
"441.
441. Bond of accused and sureties.- (1) 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.
(2) Where any condition is imposed for the
release of any person on bail, the bond shall
also contain that condition.
(3) If the case so requires, the bond shall also
bind the person released on bail to appear when
called upon at the High Court, Court of Session
or other Court to answer the charge.
(4) For the purpose of determining whether the
sureties are fit or sufficient, the Court may
accept affidavits in proof of the facts
contained therein relating to the sufficiency or
fitness of the sureties, or, if it considers
necessary, may either hold an inquiry itself or
cause an inquiry to be made by a Magistrate
subordinate to the Court, as to such sufficiency
or fitness."
12. It is apparent that in case of a bailable
offence, the police officer or the Court, as the case
may be, has to take a bond for such sum of money as the
police officer or the Court, as the case may be, think
sufficient. One or more sureties can also be taken.
The bond to be taken in such cases is for ensuring
attendance of the accused before the Court and/or before
the police, as the case may be.
13. The grant of bail has a result of setting a
person arrested at liberty on surety being taken for his
appearance on a day or place certain. The surety taken
is called as 'bail'. Under the old Code, Section 496
conferred absolute right to bail to a person accused of
commission of bailable offence. The said absolute right
has been recognised by sub-section (1) of section 436 of
the said Code. The difference between the old section
496 and section 436 of the present Code is that
sub-section (2) of section 436 did not find place in
section 496. Sub-section (2) of section 436 gives power
to the Court to decline bail in the event a person who
has been enlarged on bail under sub-section (1) of
section 436 fails to comply with the condition of bail
bond as regards time and place of attendance.
14. It will be necessary to refer to the decision of
the Apex Court in the Talab Haji Hussain (Supra). The
Apex Court had an occasion to consider the provisions of
section 496 to 498 of the old Code. In paragraph no.3
of the said decision, the Apex Court has held thus :-
"(3) There is no doubt that under S.496 a person
accused of a bailable offence is entitled to be
released on bail pending his trial. As soon as
it appears that the accused person is prepared
to give bail, the police officer or the Court,
before whom he offers to give bail, is bound to
release him on such terms as to bail as may
appear to the officer or the Court to be
reasonable. It would even be open to the
officer or the Court to discharge such person on
executing his bond as provided in the section
instead of taking bail from him."
(Emphasis added)
15. In the aforesaid case before the Apex Court, the
Appellant was charged with commission of a bailable
offence. The Appellant was enlarged on bail by the
learned Magistrate. On application made by the
complainant for cancellation of bail, the learned
Magistrate declined to cancel the bail on the ground of
lack of
jurisdiction. An application was made by the
Applicant before this Court invoking inherent powers of
this Court under section 561-A of the old Code. This
Court took a view that under the inherent powers of this
Court, bail can be cancelled. This Court proceeded to
cancel the bail granted in favour of the Appellant. The
order of this Court was challenged in the Apex Court.
The argument before the Apex Court was that
notwithstanding the order of cancellation of bail passed
by the High Court, the Appellant can again move the
Court under section 496 for grant of bail and the Trial
Court is bound to grant bail as the right of the
Appellant to be enlarged on bail in a bailable offence
was an absolute and indefeasible right. While dealing
with the said contention, the Apex Court held that the
commitment of the Appellant to the custody was not by
reason of the fact that he is alleged to have committed
a bailable offence, but the reason for his commitment to
custody was a judicial order passed on the ground that
he has forfeited his bail. The Apex Court held that in
such a case the Appellant was not entitled to fall back
on his rights under section 496 of the old Code. In
that context, the Apex Court observed that indefeasible
right
conferred under section 496 will not be available
to the Appellant. However, as stated earlier, in
paragraph 3 of the Judgment, the Apex Court upheld the
right to bail of an accused under section 496 of the old
Code, provided the accused is willing to give bail. On
plain reading of section 496 of the old Code and section
436(1) of the said Code, it is crystal clear that when a
person is charged with commission of a bailable offence,
he gets an absolute right of being enlarged on bail as
soon as he shows his willingness to give bail. In the
light of this absolute right created under section 436
of the said Code, it will be necessary to consider
whether any condition can be imposed by the learned
Magistrate or the Police Officer while granting bail.
16. Perusal of section 436 of the Code of 1973 shows
that there is no provision therein which gives power to
the Court to impose any condition while enlarging an
accused on bail in a case where bailable offence is
alleged. In fact, the first proviso of the said section
lays down that if an accused is indigent and is unable
to furnish surety, the Court is under an obligation to
discharge him on his executing a bond without without
sureties for
his appearance. The explanation to
sub-section (1) of section 436 provids that when a
person is unable to give bail within a week of his
arrest, it shall be a sufficient ground for the Officer
or a Court to presume that he is an indigent person for
the purposes of this proviso. Thus, the law makes it
clear that when an accused who is alleged of commission
of a bailable offence is unable to furnish bail in the
form of surety within a week from his arrest, he has to
be discharged on his executing a bond. Thus, not only
sub-section (1) but the first proviso and the
explanation thereto clearly show that an unfettered
right is granted to be enlarged on bail to a person
other than a person accused of non-bailable offence
arrested or detained without any warrant by an Officer
in charge of a police station or when such a person
appears or is brought before a Court. Such a person has
to be enlarged on bail provided he is prepared to give
bail. If such person is indigent and is unable to
furnish surety, by dispensing with the requirement of
furnishing bail or surety, he has to be discharged on
his executing a personal bond without sureties. If such
a person is unable to give bail within a period of one
week
from the date of his arrest, by legal fiction, the
law presumes that the person is an indigent person and
thus he will have to be discharged on executing a
personal bond without sureties. The decision of the
Apex Court in the case of Talab Haji Hussain (supra)
deals with a case where bail of an accused is cancelled
and he is arrested and committed to the custody. In
such a case, the Apex Court observed that the commitment
of the accused to the custody is as a result of the
judicial order passed on the ground that he has
forfeited his bail and that his subsequent conduct shows
that he cannot be at large. The Apex Court held that in
such a case when the accused seeks bail, he cannot take
benefit of section 496 of the old Code and claim
unqualified and absolute right to be released on bail.
The same is the principle incorporated in sub-section
(2) of section 436 of the Code of 1973. Therefore, the
law laid down in the said case operates at a stage when
bail granted to an accused of bailable offence is
cancelled and he is taken in custody.
17. The decision in the case of Hajarilal (supra)
does not support the contentions raised by the learned
Counsel
appearing for the Respondent No.1. This was a
case where the Appellant before the Apex Court was
arrested for the offence under sections 406 and 420 of
the Indian Penal Code. He was ordered to be enlarged on
bail by imposing a condition that he will not leave
India without the permission of the Court. On a
Petition filed under section 561A of the old Code by the
original Complainant, the High Court directed the
Sessions Court to ensure that the Appellant was ordered
to surrender his passport. This was not a case where
the offence was a bailable offence.
18. In the case of the State of Gujrat (supra), the
Apex Court again held that when offences alleged against
the accused were bailable, the Commissioner of Police or
the Police Officer who has authority to investigate such
offences is under a legal obligation to release the
accused on bail under section 496 of the old Code.
19. Thus, the position of the law is that a person
who is alleged to have committed a bailable offence has
an unfettered and absolute right to be enlarged on bail
and the Court or the Police Officer concerned, as the
case
may be, has no discretion to grant or refuse bail.
Subject to first proviso to sub-section (1) of section
436 of the Code of 1973, the Court may modulate the
condition of bail as regards the bail amount and the
number of sureties. However, the Court cannot impose a
condition which is not a term as to the bail. The
condition of requiring a person accused of a bailable
offence to surrender his passport to the Court is not a
term as to bail. If in such a case a condition is
imposed that bail is granted subject to condition of
deposit of passport, such a condition will defeat the
absolute right of the accused under section 436(1) of
the said Code to be set at liberty. In the
circumstances, while enlarging the Petitioner on bail in
a bailable offence, the learned Magistrate has no
jurisdiction to direct deposit of the passport. The
Magistrate cannot impose a condition while granting bail
in a bailable offence of not leaving India without the
permission of the Court. Whenever the Petitioner is
enlarged on bail, he is bound to attend the concerned
Court on the date fixed or whenever he is called upon to
do so. This obligation is created by the bail bond. If
he desires to remain absent, he will have to seek an
exemption
from the Court. In a given case if there is
an apprehension that the accused is likely to abscond,
steps can also to be taken under the appropriate
provisions of law. Steps can be also taken for
impounding the passport.
20. In the circumstances,I pass the following order
:-
(1) The application is allowed by setting aside
the direction in order dated 15th April 2006 of
depositing the passport as well as the
consequential direction that the Petitioner
shall not leave India without prior permission
of the Court.
(2) It is however clarified that the Petitioner
is bound by the other conditions incorporated in
the bail bonds.
(3) The passport of the Applicant shall be
returned to him within a period of six weeks
from today.
[ A.S.OKA,J.]
