Vipin Mehra And Anr. vs State
2003 Latest Caselaw 805 Del

JUDGMENT

J.D. Kapoor, J.

1. The short question involved for determination in this petition, through which the order dated 19th April, 2001, passed by Shri S.N.Dhingra, learned ASJ has been assailed, is whether the court has a judicial discretion or power either under Section 437 or 438 CrPC while considering the question of grant or refusal of bail to impose a condition directing the accused to furnish bank guarantee or deposit an amount of money.

2. In the instant case the bail was granted subject to the condition that the petitioners will submit bank guarantee to the tune of Rs.10 lacs in the court concerned within one week. There is no gain saying the fact that every criminal court is a creature of Criminal Procedure Code. It is neither above it nor can it rise above it. It has to strictly remain within the precincts of CrPC even while exercising the discretionary powers. Even the discretionary powers are to be exercised judicially and not whimsically or capriciously.

3. While justifying the imposition of such a condition, Mr.Bhambani, learned counsel for respondent no.2 on whose complaint the cognizance was taken and the impugned order was passed has placed reliance upon Chakrawarti Prasad Vs. State of Bihar II(2001) SLT 223 wherein the allegation was of pilferage of the electricity to the tune of Rs.21 lakhs and the anticipatory bail was granted on the condition to remit this amount of Rs.21 lakhs within a period of six months. As is apparent the difference in the facts of a case where a demand of Rs.21 lakhs was raised by the electricity department on the consumer on account of pilferage of electricity and the facts of instant case sticks out for miles. In the aforesaid case the time schedule was also fixed for payment of Rs.21 lakhs in Installments during the span of six months. By no stretch of imagination the ratio of this authority is applicable in the instant case. Another case relied upon by the learned counsel for the respondent is Srichand P.Hinduja vs. State through CBI, New Delhi 2002 Crl.L.J.942 whereby the permission to travel abroad was granted subject to the condition of executing a bond of Rs.15 crores each with bank guarantee for the like amount to the satisfaction of the sub-judge. Apparently the facts are altogether on different premise as they had sought the permission to leave the country for traveling abroad in connection with their business.

4. On the contrary, this court as well as the Supreme Court has been cautioning the courts not to impose a condition of depositing an amount of money over and above the personal bond as well as surety bond of specific amount while granting the bail.

5. Recently the Supreme Court in Avinash Arora and others Vs. State of U.T.Chandigarh and another 2000(106)CRLJ 4674 SC has in a case where the accused was required to deposit Rs.10 crores as a condition for being released on bail observed that "we have no hesitation to come to the conclusion that the Court committed error in passing the conditional order of depositing Rs.10 crores for grant of anticipatory bail as in our view, this cannot be held to be an exercise of judicial discretion. Similarly our own High Court in Dinesh Ahluwalia and others vs. State 2003(2) JCC 1993 wherein a condition of deposit of Rs.2.5 lacs was imposed while granting anticipatory bail directed that such a condition is improper and cannot be imposed. In this case the provisions of Section 437 & 438 were dealt with in extenso.

6. In another case this Court in Jagmohan Singh Kataria & Anr. Vs. State of NCT of Delhi 2002(3) JCC 1721 held that such a condition cannot be sustained as conditions which can be imposed are primarily with a view to ensure availability of the accused during investigation, enquiry or trial and his non-interference with the course of justice.

7. Let us examine the matter on the anvil of relevant provisions viz. Sections 437(3) and 438 CrPC as these provisions vest the discretion in the court to impose condition while granting bail. Section 437(3) provides as under:-

"(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, Chapter 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 () the Court may impose any condition which the Court considers necessary-

(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."

8. As is apparent from the bare perusal there is no provision for imposing a condition of the kind which has been imposed in the instant case. The condition of executing a personal bond itself has been deemed as a condition to ensure the attendance of the accused for the offences. The other condition the court has the power to impose is to see that the person does not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected.

9. Let us see what discretion Section 438 vests in the Court to impose conditions while granting bail. Section 438 CrPC reads as under:-

"438. Direction for grant of bail to person apprehending arrest---(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(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---

(i) a condition that the person shall make himself available for interrogation by a police officer as 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.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section(1)."

10. From the above it is conspicuous that the Court has discretion to impose the following conditions:-

1)that the person shall make himself available for interrogation by a police officer as and when required;

2)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.

3) that a person wants to leave India shall not do so with the previous permission of the court.

11. It appears that the condition imposed by the learned ASJ was presumably under sub-clause (iv) of sub-section (2) of Section 438 i.e such other conditions as may be imposed under sub-section (3) of Section 437 as the bail was granted under that Section. When sub-section (3) of Section 437 does not provide any such condition as has been imposed in the instant case the question of imposing such a condition under sub-clause (iv) of sub-Section (2) of Section 438 does not arise. Merely because the value of the equipment that is alleged to have not been returned by the petitioner to the respondent was huge does not mean that the condition of furnishing a bank guarantee while granting bail should be imposed. Bail order cannot be converted into a suit for the recovery of the said amount.

12. Any condition of such a coercive nature tantamounts to denying the benefit of bail itself. It is like giving with one hand and taking away with another hand. The person is asked not only to furnish a personal bond for heavy amount but also to furnish a surety of the same amount and over and above he is asked to deposit extra amount by way of bank guarantee etc. This is nothing but crass way of exercising the judicial discretion.

13. Once the court comes to the conclusion on the facts and circumstances of the case that a person is entitled to the benefit of bail then no condition other than those enumerated in Section 437(3) or 438(2) can be imposed. Imposition of such a condition is not only beyond the purview of the provisions of CrPC but also beyond the powers of the court. Discretion does not mean that it has no arena or boundary. No Court having howsoever absolute power can traverse beyond the arena carved out for it. Even absolute discretion does not admit element of arbitrariness or whimsicality or capriciousness. Thus from any aspect we may examine the impugned order it is not sustainable in the eyes of law and has to go to the extent of imposition of a condition of furnishing a bank guarantee. If the trial court was so doubtful or uncertain about the attendance of the petitioner it was well within its jurisdiction to refuse the bail.

14. The foregoing reasons pursuade me to allow the petition and remove the condition of furnishing bank guarantee or deposit an amount of money.

15. The petition is disposed off. Copy of the judgment be sent to all the Judicial Officers.