Bombay High Court
Hitesh S/O. Tulsidas Nachwani vs The State Of Mah. Thr. Pso, Ps Lohara, ... on 31 January, 2024
Author: M.W. Chandwani
Bench: M.W. Chandwani
2024:BHC-NAG:1732
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.688/2023
Hitesh S/o Tulsidas Nachwani,
Aged about 36 years, Occ. Business,
R/o. Shivaji Nagar, Yavatmal,
District Yavatmal. ....PETITIONER
...V E R S U S...
The State of Maharashtra,
through Police Station Officer,
Police Station, Lohara, Yavatmal,
District Yavatmal. ...RESPONDENT
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Shri/s K.S. Narwade and N.R. Shiralkar, Advocates for petitioner.
Shri Aalap Palshikar, A.P.P. for respondent.
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CORAM:- M.W. CHANDWANI, J.
DATED : 31st JANUARY, 2024.
ORAL JUDGMENT:
. Rule. Rule made returnable forthwith. Heard finally
with consent of the learned counsel for the parties.
2. A short but interesting question raised in this petition
is, on showing willingness by an accused to deposit the amount,
allegedly misappropriated in a crime, whether the Court while
allowing the anticipatory bail application was justified in imposing
a condition of depositing the amount allegedly misappropriated.
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3. The facts relevant for decision of this writ petition are
as under:
4. On a report lodged by General Manager of District
Industries Center, Yavatmal with Lohara Police Station alleging
misappropriation of funds of the Government by the ineligible
industry in connivance with one Shri Ajay Rathod, a clerk of the
District Industries Center, Yavatmal, offences punishable under
sections 409, 420, 464, 468, 471 read with section 34 of the
Indian Penal Code came to be registered against the petitioner and
other accused vide Crime No.236/2023. The allegation against the
petitioner is that he has received the amount as an incentive in his
bank account from the District Industries Center, for which he was
not entitled.
5. Apprehending his arrest, the petitioner approached the
Additional Sessions Judge, Yavatmal seeking anticipatory bail.
Pending the said application, the petitioner submitted a pursis
expressing his readiness to return the amount credited in his bank
account in excess to his entitlement. After hearing the parties, the
learned Additional Sessions Judge, Yavatmal protected the
applicant with extra relief of anticipatory bail with a rider of
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condition no.(vi), which reads thus:
"(vi) He shall return the amount, which is subject
matter as well as mentioned in the FIR, duly deposited
in his account to the Government of Maharashtra,
within one month from the date of this order and it
shall be verified by the concerned I.O., Director of
Industries, Yavatmal shall verify and acknowledge the
receipt of said amount to the I.O."
6. Feeling aggrieved with the said condition, the present
writ petition is filed.
7. Mr. Narwade, learned counsel for the petitioner
vehemently submitted that Court while granting the anticipatory
bail cannot impose such condition of return of the amount,
particularly when the investigation is yet to be completed and
charge-sheet is yet to be filed. According to him, sub-section (2) of
section 438 of the Code of Criminal Procedure 1973, the Court
does not have power to impose a condition which is onerous or
unreasonable or excessive. The condition to deposit the amount
which is subject matter of the alleged crime is onerous and
unreasonable, therefore the said condition needs to be quashed
and set aside. He submits that the practice of imposing condition
for depositing the amount as pre-requisite for grant of pre-arrest
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bail shall be deprecated. He relies on the recent decision of the
Supreme Court in Ramesh Kumar Vs. State of NCT of Delhi 1
8. Per contra, Mr. Palshikar, learned APP objected the
petition on the ground that the petitioner himself has shown
wiliness to deposit the difference amount voluntarily. Now, after
getting the bail order he cannot take U-turn as he is governed by
the principles of estoppel. According to him, since the petitioner
has shown willingness therefore the condition no.(vi) has
appeared in the bail order, now the petitioner is questioning the
condition imposed by the learned Additional Sessions Judge,
Yavatmal. Hence, learned APP seeks rejection of the petition
9. While granting relief under section 438(1) of Cr.P.C
the court may impose appropriate conditions under section 438
(2) of Cr.P.C. in light of the facts of the particular case. Thus,
there is no manner of doubt that the court, having regards to the
facts and circumstances of the case can impose necessary, just and
efficacious conditions while enlarging an accused anticipatory
bail. In context of grant of bail, all such conditions that would
facilitate the appearance of the accused before the investigating
1 2023 LiveLaw (SC) 496
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officer/court, unhindered completion of investigation/trial and
safety of the community assume relevance. However, the
condition cannot be harsh, onerous or excessive as to frustrate the
very of grant of anticipatory bail under section 438 of Cr.P.C.
10. In Dilip Singh vs. State of Madhya Pradesh1, the Hon'ble Apex
Court sounded a note of caution in the following words:
"3. By imposing the condition of deposit of Rs 41 lakhs, the
High Court has, in an application for pre-arrest bail under
Section 438 of the Criminal Procedure Code, virtually issued
directions in the nature of recovery in a civil suit.
4. It is well settled by a plethora of decisions of this Court that
criminal proceedings are not for realisation of disputed dues. It
is open to a court to grant or refuse the prayer for anticipatory
bail, depending on the facts and circumstances of the particular
case. The factors to be taken into consideration, while
considering an application for bail are the nature of accusation
and the severity of the punishment in the case of conviction and
the nature of the materials relied upon by the prosecution;
reasonable apprehension of tampering with the witnesses or
apprehension of threat to the complainant or the witnesses;
reasonable possibility of securing the presence of the accused at
the time of trial or the likelihood of his abscondence; character,
behaviour and standing of the accused; and the circumstances
which are peculiar or the accused and larger interest of the
public or the State and similar other considerations. A criminal
court, exercising jurisdiction to grant bail/anticipatory bail, is
not expected to act as a recovery agent to realise the dues of the
complainant, and that too, without any trial."
11. Yet again in Bimla Tiwari vs. State of Bihar2 the Hon'ble
1 (2021) 2 SCC 779
2 (2023) SCC OnLine SC 51
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Apex Court said:
"9. We have indicated on more than one occasion that the
process of criminal law, particularly in matters of grant of bail,
is not akin to money recovery proceedings but what has been
noticed in the present case carries the peculiarities of its own.
10. We would reiterate that the process of criminal law cannot
be utilised for arm-twisting and money recovery, particularly
while opposing the prayer for bail. The question as to whether
pre-arrest bail, or for that matter regular bail, in a given case is
to be granted or not is required to be examined and the
discretion is required to be exercised by the Court with
reference to the material on record and the parameters
governing bail considerations. Putting it in other words, in a
given case, the concession of pre-arrest bail or regular bail could
be declined even if the accused has made payment of the money
involved or offers to make any payment; conversely, in a given
case, the concession of pre-arrest bail or regular bail could be
granted irrespective of any payment or any offer of payment.
11. We would further emphasize that, ordinarily, there is no
justification in adopting such a course that for the purpose of
being given the concession of pre-arrest bail, the person
apprehending arrest ought to make payment. Recovery of
money is essentially within the realm of civil proceedings."
12. In the recent decision in Ramesh Kumar (supra) relied by
the petitioner the Supreme Court came down heavily on the
practice of directing the accused while seeking anticipatory bail
under section 438 of the Cr.P.C. in private disputes to pay the
amount of cheating or misappropriation and incorporating a
condition in that behalf for deposit/payment as a pre-requisite for
grant of bail. However, in the said judgment, an exception is
carved out that where an allegation of misappropriation of public
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money by the accused is levelled and the accused while seeking
indulgence of the Court to have his liberty secured/restored
volunteers to account for the whole or any part of the public
money allegedly misappropriated by him. The Court, while
considering the larger public interest the money misappropriated
can allow to deposit such amount.
13. Thus, the Court should not direct for depositing the
amount of cheating or misappropriation in a private dispute as a
pre-requisite for grant of bail. However, in case of the larger
public interest, particularly where the public money is involved,
the court can allow an accused of misappropriation of public fund
to deposit amount allegedly misappropriated by him while
considering the anticipatory bail application. After all, in larger
public interest, no court should be averse to putting public money
back in the system if the situation is conducive thereof. However,
such an approach would not be warranted in cases of private
disputes where private parties complain of their money being
involved in the offence of cheating.
14. Reverting to the case in hand, where the allegations of
misappropriation of public money by the accused including
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petitioner have been levelled. According to the prosecution the
petitioner in connivance with the other accused got the amount
credited in his account excess to the amount of his entitlement.
The said amount allegedly misappropriated by the accused is
public money belonging to the ex-checker. It is the petitioner who
himself has volunteered to deposit the difference of amount,
which he received in his bank account and on his show of
willingness the Court has passed the order directing him to
deposit the public money allegedly misappropriated by him.
Therefore, the petitioner now cannot take somersault and submit
that the said condition is unreasonable. The petition stands
dismissed. Rules is discharged, accordingly.
JUDGE
Wagh
