Delhi High Court
H.S. Pannu vs Govt. Of N.C.T. Of Delhi And Anr. on 22 October, 2007
Author: S R Bhat
Bench: S R Bhat
JUDGMENT
S. Ravindra Bhat, J.
Page 2735
1. These revision proceedings under Sections 397/401 of the Code of Criminal Procedure Code (Cr.PC) involve decision of common questions. Hence with consent of counsel, they were heard together.
2. The Petitioners purport to be aggrieved by orders of the Special Court, constituted under the Electricity Act, 2003 (hereafter referred to as "the Act"). Page 2736 By the impugned orders in the first set of revisions, the Special court had directed, as a condition for grant of bail, the Petitioner-accused to deposit amounts, in one set of revision petitions. In the other set of revision petitions, the Court recorded undertakings that the petitioner-accused would deposit certain amounts. These set of orders are challenged as recording statements which were allegedly not made or made under compulsion, of circumstances.
3. With the enactment and coming into force of the Act, offences under Section 135 read with Section 151 were created. The said provisions read as follows:
135. Theft of electricity - (1) Whoever, dishonestly-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines of cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, toop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use-
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity;
Provided further that if it is proved that any artificial means or means not authorised by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary
is proved that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(2) Any officer authorised in this behalf by the State Government may-
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been or is being] used unauthorizedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which [has been or is being], used for unauthorized use of electricity;
Page 2737
(c) Examine or seize any books or account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under Sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts there from in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult made member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be to searches and seizure under this Act.?
xxx xxx
150. Abetment. - (1) Whoever abets an offence punishable under this Act, shall, notwithstanding anything contained in the Indian Penal Code, be punished with the punishment provided for the offence.
(2) Without prejudice to any penalty or fine which may be imposed or prosecution proceeding which may be initiated under Act or any other law for the time being in force, if any officer or other employee of the Board or the licensee enters intro or acquiesces in any agreement to do, abstains from doing, permits, conceals or connives at any act or thing whereby any theft of electricity is committed, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
4. The Petitioners are alleged to have committed offences punishable under Sections 135. In the first set of proceedings, where the Court directed deposit of amounts, the relevant details such as case number, amount claimed by the Electricity Company, the amount directed to be deposited etc, are shown in a tabular form, as Table-1 as follows:
TABLE-I
-------------------------------------------------------------------------------
Sl. No. Case No. Criminal Rev Amount directed Amount of Bill
by Court
-------------------------------------------------------------------------------
1. 421/06 116/07 Rs. 10,30,200/- Rs. 2,00,000/-
2. 191/06 269/07 Rs. 17,00,000/- Rs. 5,00,000/-
3. 512/06 239/07 Rs. 2,55,714/- Rs. 1,00,000/-
4. 31/06 138/07 Rs. 865,798/- Rs. 3,00,000/-
5. 179/06 406/07 Rs. 3,06,178/- Rs. 1,25,000/-
6. 422/06 592/07 Rs. 6,00,000/- Rs. 2,00,000/-
7. 291/06 52/07 Rs. 1,45,00,000/- Rs. 50,00,000/-
8. 17/06 744/07 Rs. 18,32,090/- Rs. 4,50,000/-
9. 47/2006 287/07 Rs. 33,73,032.36 Rs. 20,00,000/-
10. 651/06 405/07 Rs. 3,61,334/- Rs. 1,50,000/-
===============================================================================
Page 2738
5. In the second set of proceedings where the Court recorded the statement to pay specified amounts, the relevant details such as case number (before the Special Court), amount claimed by the electricity company, amount directed to be deposited etc, are shown as Table-II which is as follows:
TABLE-I
-------------------------------------------------------------------------------
Sl.No. Case No. Criminal Rev Amount directed Amount of Bill
by Court
-------------------------------------------------------------------------------
1. 221/06 108/07 Rs.7,22,387/- Rs. 4,00,000/-
2. 598/06 285/07 Rs.7,84,376/- Rs. 3,00,000/-
3. 279/06 75/07 Rs.3,92,419/- Rs. 1,00,000/-
4. 190/06 329/07 Rs.21,36,561/- Rs. 6,00,000/-
5. 67/06 328/07 Rs.1,31,482/- Rs. 50,000/-
===============================================================================
6. It is urged on behalf of the Petitioners that the Special Court could not have directed payment of any amount as condition for granting anticipatory bail or regular bail as the case may be. Reliance was placed on Sections 437/438 and 439 of the Cr.P.C. The common allegations made are that imposition of such conditions undermines the right to personal liberty and detract from the object of granting bail.
7. Mr. R.S. Malik, Mr. Laleit Kumar, Mr. K.B. Andley, Senior Advocate, Mr. S.S. Dalal, Shri. Gupta and Sh. Maninder Singh counsel, argued on behalf of the Petitioners. It was contended that the object of imposing any condition have to bear nexus with granting bail. The object of imposing conditions, wherever permitted is to ensure the presence of the accused during the proceedings before Court and also see that he does not hamper investigations. Learned Counsel contended that provisions of the Act read as a whole do not make any departure from this underlying premise. Instead of the pre-existing law whereby the persons alleged of committing theft had to be proceeded under Sections 39 and 44 of the repealed Electricity Act, new offences of the same kind have been enacted under Sections 135 and 151 of the Act. Along with this, trial by a separate Special Court has been provided for. These did not imply that Parliament intended to place such offences on a different footing and to confer upon Special Judges, under the Act, the power to routinely require depositing of substantial amounts as a condition for release on bail. Such routine conditions are unsupportable in law and undermine personal liberty enshrined under Article 21 of the Constitution of India. Besides, the direction to pay amounts or even recording undertaking to pay such amounts to the electricity company i.e. the complainant amounts to a pre-determined adjudication in the absence of a trial.
8. Counsel contended that the imposition of civil liability and direction to pay amounts, provided for under Section 154(5) of the Act is at the end of the proceedings and not before they are commenced, by the Court. Therefore, direction to pay such amounts, whether given by the Court or recorded in the form of an undertaking are ad-hoc and arbitrary determination of liability on the assumption of the accused petitioner being an offender. Such conditions are not sanctioned by law and cannot be approved under the existing statutory and constitutional framework.
Page 2739
9. Learned Counsel placed reliance on decisions of this Court, reported as Ashok Malhotra v. State 1994 (2) CCC 64; Sajani Khanna v. State 2002 (1) JCC 517, Jagmohan Singh Kataria v. NCT of Delhi 2002 (3) JCC 1721; Shri Vishnu Sharma and Ors. v. NCT of Delhi 2003 (3) JCC 1524; Court on Its Motion v. Central Bureau of Investigation . Counsel also relied upon judgments of the Supreme Court reported as Sohan Lal Juneja and Ors. v. State of Punjab ; U. Palaniappan and Anr. v. Sub Inspector of Police 2005 SCC (Cri) 1586; Shyam Singh v. State 2006 (2) SCC (Cri) 613 and submitted that a direction to pay substantial amounts as a condition bail, unrelated to the object of securing the accused's presence is unwarranted and amounts to directing recovery of liabilities from him without adjudication.
10. It was urged that in all the cases where the Courts directed payment of amounts, as condition for grant of anticipatory bail, the consideration which weighed with it were the allegations made in the complaint and the amounts in the so-called "theft bill" produced before it. The accused had no opportunity of even entering the defense, as the pre-summoning evidence on behalf of the electricity companies had been recorded. It was contended that the procedure prescribed under the Act does not contemplate investigation by any independent agency or even the police but the electricity company itself. Its officers are granted search and seize powers under the Act. Thus, on the basis of materials produced before the Court and the testimony on behalf of the complainant, accused were summoned to Court. On these basis, accused were directed, as a condition for enjoying liberty, during their trial, to pay substantial amounts to the complainant which form part of the claim of the complainant. Such procedure is un-heard of in law.
11. Counsel contended that the provision for compounding, under Section 152, and the schedule of the fees prescribed in that regard, indicates that if an accused so desires, he can even compound the offence by paying such fee. Those amounts are vastly lower than the amounts directed as a condition for bail, without considering the defense of the accused. The direction to pay amounts in these circumstances has no nexus with the object of securing the presence of the accused or ensuring that he does not hamper investigation. There is no investigation in such cases; the procedure being a summary trial case where the electricity company is a complainant, approaching the court with relevant evidence. In such circumstances the directions to pay amounts amounted to a trial-less decree, the satisfaction of which is also ensured by the Court, having regard to the very nature of the proceedings; i.e. for enlarging the accused on bail.
12. It was urged, in relation to the undertakings recorded in the second set of cases that besides the lack of power of Court to require payment of the Page 2740 amounts, the undertakings in the present cases were not voluntary. Learned Counsel sought to urge that in fact no undertakings were given in such cases. It was urged that the special courts have resorted to an un-healthy practice of refusing to take up the bail applications and postponing their consideration to the second half of the day and thereafter coercing accused to somehow record agreement to pay certain amounts, as condition for granting bail. It was urged that in all these cases the accused petitioners approached this Court at the earliest point, stating that no such undertakings were in fact recorded.
13. Learned Counsel relied upon the judgment of the Supreme Court in P.R. Deshpande v. Maruti Balram Haibatti and contended that recording of an undertaking by a litigant, even if made voluntarily, does not affect his statutory and legal rights, which cannot be waived.
14. Mr. Neeraj Kishan Kaul, learned senior Counsel appearing on behalf of the electricity companies i.e. complainant submitted that the Courts acted within the bounds of law in directing payment of amounts as a pre-condition for grant of bail and in the second set of cases, recording the undertakings of the Petitioners. He relied upon Sections 437-439 of the Cr PC and contended that conditions can be imposed by the Court having regard to the nature of the offence, the accused and facts of the case. It was submitted that the Act aimed at optimizing transmission, generation, distribution of electricity and efficient collection of dues. One important component of the larger public interest in enforcing the Act was booking those involved in electricity theft. The importance of recovering amounts determined as liability under the Act, in terms of its provisions, therefore, could not be ignored. The provisions of Sections 135 and 154(5) had to be interpreted within such perspective.
15. Learned Counsel submitted that the object of creation of Special Courts and also prescribing a summary procedure is to ensure speedy trial of the offences. To effectuate this, several Special Courts were set up to exclusively trial offences under the Electricity Act. While there is no dispute that provisions of Sections 437-439 of Cr.P.C. would guide the Courts, in dealing with applications for anticipatory and regular bail, it would be wrong to suggest that the Special Courts were bereft of power to direct depositing of amounts as condition of bail. Learned Counsel submitted that so long as the Courts keep the overall facts in mind and apply objective criteria while granting such conditional bail, this Court should desist from interfering with such orders. Learned Counsel relied upon the decision of the Supreme Court in Chakrawarti Prasad v. State of Bihar ; M Sreenivasulu Reddy v. State of Tamil Nadu 2001 (2) Crimes 230; and the judgments of this Court in Sunil Sharma v. State 1993 (Crl.L.J.) 3628; M.R. Narayanan v. State (DB), Sumitra Chauhan v. State Page 2741 2005 (83) DRJH 21 and lastly Rajender v. BSES Rajdhani Power Ltd. 2007 1 AD (Crl.) 520.
16. It was submitted that the Courts have always leaned in favor of enforcing undertakings given by accused given at the time of moving bail applications. Learned Counsel relied upon the judgments in Chakrawarti Prasad, Sreenivasulu Reddy and Sumitra Chauhan, in this regard. It was lastly contended that the question of power of Special Judges to impose conditions was extensively considered and upheld in Rajender's case.
17. Sections 437-438 of the Cr.P.C. read as follows:
437. When bail may be taken in case of non-bailable offence - (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 of 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 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 cognizable offence punishable with imprisonment for three years or more but not less than seven years];
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.
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity or hearing to the public prosecutor.
(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 subject to the provisions of Section 446A and pending such inquiry, be released on bail, or at the discretion of such Page 2742 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, 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 (1) the Court shall impose the conditions-
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with t he facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.
(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 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, in any case friable 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 persons 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 bound without sureties for his appearance to hear judgment delivered.
438. Direction for grant of bail to person apprehending arrest - (1) where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
Page 2743
(iii) the possibility of the applicant to flee from jsutice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim orde3r for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) where the Court grants an interim order under Sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the public prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the public prosecutor, the Court considers such presence necessary in the interest of justice.
(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 s 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 Corut under Sub-section (1).
18. In Rajender's case, this Court examined the condition imposed i.e. deposit of Rs. 65 lakhs, in the context of provisions of Sections 135-139 and 154 of the Act. It was then observed that:
Page 2744
10. Thus this is the peculiar feature whereby the Special Court is discharging both criminal and civil functions which are combined into one. In the same complaint filed by the complainant, not only the Special Court can punish the accused if it is established that the accused had committed the offence under Section 135 to 139 of the Act, it can even determine the civil liability and direct the said person to deposit the amount of civil liability so determined. It is for this reason that while granting bail the Special Court has power to impose conditions, which may include the condition as to deposit of the amount. This was so held by the Supreme Court in the case of Chakrawarti Prasad v. State of Bihar . But for this special provision, normally while granting bails these kinds of conditions are impermissible.? Later the Court held that since by a previous order the trial Court, had recorded consent:
I may add that the impugned order dated 17.11.2006 reads that the petitioner and his counsel had consented to deposit this amount. That may be the reason for not undertaking the exercise. However, I may also add that cases are coming to this Court where conditions of deposit of a particular amount while granting bail are challenged. No doubt, the Special Judge has power to impose such a condition. However, since the Special Judge is to ultimately decide the civil liability as well, while directing the accused to deposit a particular amount at the time of grant of bail, the Special Judge should not be influenced by the amount of the bill alone. He should consider, at least prima facie, the proprietary of issuing bill of a particular sum in a particular case, albeit on the presumption that there was theft of electricity. Formula for raising such bills is provided under the Act and the rules framed there under. In this very case, in his order dated 05.09.2006, the learned ASJ had ventured this exercise and found that normally the bill should have been to the extent of Rs. 11,95,000/-. It is only after undertaking such an exercise, more particularly when the accused challenges the quantum of the bill, that the Special Judge should decide as to how much amount needs to be deposited by the accused person seeking bail. No doubt, theft of electricity, which has become a menace, has to be checked and for this reason the Legislature has made unique provision in the form of Section 154 of the Act. However, it is also to be seen that the electricity authorities do not foist on the consumers with unreasonable demands by inflating the bills which they are not in a position to justify as in the case of theft as well, the bills are to be raised as per the formula prescribed. Therefore, the duty of the Special Judge becomes more solemn in going through this exercise so as to maintain proper balance between the interest of the electricity authority/ licensee on the one hand and the rights of the accused on the other.
Page 2745
14. Normally, when the impugned order records that it is the petitioner who had himself agreed to deposit 40% of the bill amount, one would not interfere as such an order came to be passed on the purported concession of the petitioner. However, in view of the fact that the petitioner had already been granted anticipatory bail and, therefore, armed with the order dated 05.09.2006 he might not have agreed with such a condition and, more particularly, having regard to the detailed order dated 05.09.2006 as per which the learned ASJ had made prima facie observation that maximum liability could be Rs. 11,95,000/-, I am of the view that in this case the Special Judge should consider the case on merits before coming to the conclusion as to how much amount needs to be deposited by the petitioner. Therefore, in view of this peculiar situation, I am forced to take this view, without forming it as precedent, and remand the case back to the learned Special Judge.
19. The above observations are suggestive of existence of power with the Court to impose conditions; this Court was guided by the judgment in Chakrawarty Prasad's case. In that case the Supreme Court declined to interfere with an order of the High Court whereby the accused had volunteered to deposit arrears of electricity dues. A substantial amount had already been paid and order of the High Court was modified. Significantly the Court did not consider the provisions of the Electricity Act; in any event, the case was decided in 2001, when the Act had not been enacted, or brought into force.
20. The Supreme Court in Shyam Singh's case set aside the directions of this Court whereby the accused had been asked to deposit Rs. 1 lakh per month, by an order of this Court. The Court held that such direction would amount to assumption that an offence has been committed even at the stage of granting bail; it concluded that directing repayment of any amount would be both onerous and unwarranted. It was held "in the instant case the liability of the appellant has yet to be determined in appropriate proceedings".
In U. Pallaniapan's case the Supreme Court held that the condition of requiring the accused to pay Rs. 10 lakhs for securing the benefit of bail was onerous. In M. Sreenivasulu Reddy's case the Court had to consider the correctness of the High Court's orders requiring deposit of Rs. 20 crores as a condition of bail.
The following extract is relevant for the purpose of the present discussion:
6. Having considered the rival submissions and the provisions of Section 438 Cr.PC., we are of the considered opinion that the Court while exercising jurisdiction under Section 438 Cr.P.C. must bear in mind and be satisfied that the accused will not abscond or otherwise misuse liberty and this can be ascertained from several factors like conduct of the accused in the past, his assets in the country and soon while granting such anticipatory bail, though the Court may impose such conditions as it thinks fit, but the object of putting Page 2746 conditions should be to avoid the possibility of the person hampering investigation. The discretion of the Court while putting conditions, should be an exercise of judicial discretion. In an offence under Sections 409 and 420 IPC, the Court is certainly not going to recover the alleged amount as a condition of grant of bail. This being the position, since the High Court had directed the payment of aforesaid money on the basis of the undertaking given by the accused, we would not modify that part of the order and, therefore, the accused would be required to pay the balance sum of Rs. 15 crores within a period of four weeks from today. So far as the condition (b) imposed in paragraph 18 of the order, having considered the facts and circumstances of the case in hand and the object for which an accused is granted bail and the impossibility and/or severity of satisfying the said condition, we would alter the said condition (b) by directing that it would be open for the accused to furnish corporate guarantee to the extent mentioned in paragraph 18(b) of the aforesaid order to the satisfaction of the concerned Magistrate where the case is now pending. The Magistrate should be fully satisfied about the solvency of the corporate guarantee. All other conditions mentioned in paragraph 18 of the aforesaid order would remain operative and prosecution should take expeditious steps for completing the criminal proceedings. the corporate guarantee as aforesaid should be furnished within eight weeks from today.?
21. The Division Bench judgment in M. Narayanan's case considered the decision in Sreenivasulu Reddy as well as Chakrawarty Prasad. It was held in Para 18 that conditions must be reasonable and just and should be considered by the Court in the facts and circumstances of the case, to secure presence of the accused for interrogation by the Police Officers, as and when required; to ensure that he does not misuse the liability directly or indirectly making an inducement, threat or promise to any person acquainted with the facts of the case as to discharge him from disclosing such facts to the Courts and shall ensure that the accused shall not leave the territorial limits of the country without permission of the Court. The discretion therefore has to be guided by these considerations, exercised judicially and not arbitrarily. The Court underlined that the object of imposing conditions should not be to recover the amount. It was held that:
the purpose of imposing conditions, which are envisaged in Sub-section (3) of Section 437 or Sub-section (2) of Section 438 or Sub-section (1) of Section 439 cannot be such, the object of which should be to recover the alleged amount. In that sense neither it is permissible nor appropriate either to buy bail by accused by offering to pay the alleged amount or sell bail by the Additional Sessions Judge in calling upon the accused to pay the amount. The conditions imposed must be reasonable and just which may be considered by the Court in the facts and circumstances of the case in order to secure the presence of the accused for interrogation by the police officers, as and when Page 2747 required; to ensure that the accused does not misuse liberty by directly or indirectly making an 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 the police officer; to ensure that the accused does not leave territorial limits of the country without previous permission of the Court; or that the accused does not commit an offence similar to the offence for which he is accused or suspected, during the period when he is on bail. The Court while imposing conditions has to exercise its discretion considering the facts and circumstances of the case. Discretion has to be exercised judicially and not arbitrarily and certainly the object of imposing conditions should not be to recover the amount.
In the light of the position in law aforementioned, a view expressed by the learned single Judge in Sarkar Saheb's case 2001 (93) 585 (supra) is not in conflict with the decisions rendered in Rajeshwari Verma's case (supra) since in Sarkar Saheb's case the Court considered the condition to be just, fair and reasonable, in the facts and circumstances of the case and not a harsh condition. However, in Sarkar Saheb's case the Court did not examine the question as to whether the object of imposing condition was the one which is provided in Sub-section (2) of Section 438 of Cr.P.C. The learned single Judge in Rajeshwari Verma's case found the condition imposed to be in consonance with the purposes laid down in Sub-section (2) of Section 438 or Sub-section (3) of Section 437 of Cr.P.C. In Vansh Bahadur Singh's case 1998 Cri LJ 3582 (Delhi) (supra) learned single Judge adopted the same approach as was adopted by the Supreme Court in M. Srinivasulu Reddy's case 2001 AIR SCW 2381 that when an accused has undertaken to deposit the amount and acting on that undertaking an interim order of bail was granted, the order did not require any interference thereafter since the accused was bound to pay and since the balance amount which he had undertaken to pay and since the balance amount was not paid, rightly the Court had declined to grant indulgence to the accused. There is a valid reason for taking this view of the matter and the reason being the doctrine of estoppal, which was duly approved by the Supreme Court in Sajan K. Varghese v. State of Kerala 1989 SCC (Cri) 339 : 1989 Cri LJ 897. In nutshell it was held that when a Court is persuaded to accept the terms and conditions for grant of indulgence, it will not be permissible for the party later on to resile from these terms and conditions. It is permissible, when an undertaking is given on behalf of the accused to deposit the amount, that indulgence can be granted to him, if considered reasonable and proper. Reference may be made in this regard to the decisions of Supreme Court in Chakrawarti Prasad v. State of Bihar (2001) 1 Cur Cri R 249 (SC) and Amarjit Singh v. State NCT of Delhi (2002) 61 DRJ 670 (SC). In the later decision, the Supreme Court observed that imposition of a condition to deposit a sum of Rs. Fifteen lakhs in the form of FDR was unreasonable since as Page 2748 per Sub-section (2) of Section 438, Cr.P.C. conditions which can be imposed should no be unreasonable. A condition, which would be difficult to comply with would amount to imposition of an unreasonable condition and would tantamount to refusal; of invoking the discretion under Sub-section (1) of Section 438, Cr.P.C. In Sandeep Jain v. State NCT of Delhi condition of deposit of amount of Rs. two lakhs apart from furnishing a bond of Rs. 50,000/- with two solvent sureties, while granting bail was held by the Supreme Court to be unreasonable one.
22. In Sandeep Jain, the Supreme Court stated what would be unreasonable conditions:
4. We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lakh to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is a languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs. 2 lakhs? If the cheques issued by his surety were dis-honoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police.?
23. The decision in Rajender had observed that with enactment of Section 154, civil liability was created, in addition to the offence under Section 135. This is found in Section 154(5). The procedure for determining criminal liability, i.e. trial of the offences, is provided for by Section 154(3); it is ordinarily as a summary manner, under Section 262-265 of the Cr. PC. The provision, determining civil liability, i.e. Section 154(5) operates after the court finds a person guilty of the offence. This aspect is important, since it has been provided for after Section 154(3). Besides, no separate provision, indicative of the procedure for determining civil liability has been enacted, (which would mean that the trial or procedure into the offence is in the nature of a composite one). Absence of any statutory indication that civil liability can be assumed on the basis of ex-parte pre-summoning evidence leads to the corollary that any direction to pay amount, without considering the evidence and version of the accused/defender, during the Page 2749 course of consideration of a bail application, would amount to the court adopting the allegations of the complainant, without concluding that the allegations are true.
24. The question is whether enactment of a separate civil liability provision under the Act alters the general rule, as it were, that imposing conditions for bail should be in rare cases. Wherever Parliament had intended special conditions for grant of bail, either procedurally, or in terms of pre-conditions, it had expressed itself in clear terms. Thus, in the Terrorist and Disruptive Activities (Prevention) Act, 1987, by Section 20(8), the Designated Court was, notwithstanding anything contained to the contrary in the Cr.P.C., obliged to follow a different procedure, and satisfy itself that there were reasonable grounds for believing that the accused was not guilty of the offence and was unlikely to commit similar offences, if enlarged on bail. Similar provisions exist in the Maharastra Control of Organized Crimes Act, 1999 (Section 21(3) and (4)) and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. However, the Electricity Act, 2003 does not incorporate any such special conditions.
25. A five judge Bench of the Supreme Court, in Gurbaksh Singh Sibbia v. State of Punjab , dealing mainly with the question of considerations that can validly weigh with the courts while granting bail, under Section 438, examined various facets of the issue, including decisions dealing with regular bail. It was held that:
since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi Maneka Gandhi v. Union of India that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438 in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust to unfair. We ought, at all costs to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein.
Page 2750
27. It is not necessary to refer to decision which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King Emperor AIR 1924 Cal. 476, 479, 480 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as punishment. In two other cases which, significantly, are the 'Meerut Conspiracy cases' observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor (SB) it was observed, while dealing with Section 438 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 437 which corresponds to the present Section 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 438 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. Hutchinson AIR 1931 All 356, 358 at p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity look after his own case, A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor that
the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right.
Page 2751
29. In Gurcharan Singh v. State Delhi Administration it was observed by Goswami, J., who spoke for the Court, that
there cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.
30. In American Jurisprudence (2d, Volume 8, page 806, para 39), it is stated:
Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.
26. The result of the above discussion is that the enactment of the Electricity Act has not altered the situation; no doubt new offences have been created as well as special courts, empowered to try them summarily. Yet Parliament, which had circumscribed judicial discretion by enacting conditions in other instances, studiously kept out any such provision under the Act. The Supreme Court has, in a decision reported as Maulavi Hussein Haji Abraham Umarji v. State Of Gujarat , held that there should be no a priori assumptions in the interpretation of statutes and courts should give effect to the terms of an enactment, in the light of their plain words:
Two principles of construction - one relating to cases omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a cases omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a cases omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature, "An intention to produce an unreasonable result", said Danackwerts, L.J., in Artemiou v. Procopiou (1966) 1 QB 878 : (1965) 3 All ER 539 : (1965) 3 WLR 1011 (CA), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result", we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. Per Lord Reid in Luke v. IRC 1963 AC p. 557 : (1963) 1 All ER 655 : (1963) 2 WLR 559 (HL) where at AC p. 577 he also observed : Page 2752 "This is not a new problem, though our standard of drafting is such that it rarely emerges.
27. Electricity no doubt is a precious resource; its theft is a matter of concern to all members of the community. Enactment of a special law, with a special procedure, undoubtedly signifies society?s desire to deal with it seriously. Yet, that public interest cannot suborn an equally, and perhaps greater public value in ensuring that liberties of individuals are not lightly tampered with. Thus, in Prakash Kumar v. State of Gujarat , the Supreme Court underscored the need to ensure strict interpretation of an enactment, where penalties or sanctions are provided, in the following terms:
The more stringent the law, the less is the discretion of the Court. Stringent laws are made for the purpose of achieving those objectives. This being the intentment of the legislature, the duty of the Court is to see that the intention of the legislature is not frustrated. If there is any doubt or ambiguity, the rule of purposive construction should be taken to recourse to, to achieve the objectives.? Here, unlike in other cases, where public offences are to be dealt with through action by independent public agencies or police, electricity companies are empowered to conduct searches, seizures and file complaints in special courts. That sets the law into motion. The accused do not have the benefit of an argument on charges; being a summary procedure, their views are not heard by the court. Therefore, it would be unsafe to impute an inevitability or infer change in the ground realities, with the mere creation of civil liabilities, that are to be determined by the court at the end of the trial. There is, therefore, there is no paradigm shift in the law.
28. In the decision reported as Prabhu Dayal v. District Magistrate , the Supreme Court held that:
The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the community cannot be over-emphasized. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its constitution a the most chershed of these ideals is personal liberty. It would indeed be ironic if, in the name of social security would sanction the subversion of this liberty. We do not pause to consider whether social Page 2753 security is more previous than personal liberty in the scale of values. For, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be its impact on the maintenance of supplies and services essential to the community, when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is rigorously observed, however strange this might sound to some ears.
29. In view of the above discussion, I conclude that even though the power to impose conditions in cases where a person is accused of committing offences under the Act exist, as held in Rajender, that cannot be used invariably. Permitting the courts to do so, would reduce them to agencies for realization of alleged dues of the electricity companies, in the garb of granting bail. The same considerations which weigh with courts in granting or refusing to grant bail, i.e to secure the presence of the accused, and prevent his influencing the proceedings, should weigh with the Special courts; imposing conditions for liberty, while granting bail, unless justified by peculiar circumstances, only on the assumption that the liabilities are substantial, would amount to requiring the accused to comply with onerous terms which would limit liberty. Another aspect; Rajender in my opinion turned on the facts of the case; in any case the court did not consider the larger aspect of legality of imposing such conditions, in the light of the five judge decision in Sibbia, and other judgments such as Sohan Lal Juneja; U. Palaniappan; Shyam Singh and Sandeep Jain. There are other judgments too. In Sheikh Auyb v. State of MP 2004 (13) SCC 457 it was held that a direction to pay portion of the amount misappropriated by the accused cannot be directed to be paid to the complainant, as a condition for bail. Likewise, in Geetha v. State of TN 2005 (12) SCC 203, a condition to deposit Rs. 5,00,000/- as condition for grant of bail was held to be onerous. As a result, accused alleged to have committed offences under the Electricity Act, 2003 do not stand on any different footing than those accused of other offences. The special courts should not, as an invariable rule, require them to deposit amounts, to be paid to complainants, as condition for bail. The power to do so has to be exercised sparingly, if ever, in rare cases. Even while resorting to such power, the court has to record reasons and justify the amount.
30. In the light of the above discussion, I am of the opinion that the orders, imposing condition in the first group of cases, (in Table-I, i.e. Criminal Revision Nos. 116, 239, 269, 138, 406, 592, 52, 744/07) without disclosing any reasons as to why the accused have to pay such amounts, cannot be sustained. The impugned order in Cr. Rev 287/2007 does contain reasons; the court, where the bill was Rs. 33,73,032.36, directed the petitioner accused to pay Rs. 20,00,000/- as a condition for granting bail. This is on the basis of the statements recorded on behalf of the complainant. The amount, in my opinion is excessive and the reasons given to justify its imposition are not sustainable. In the circumstances, the said direction is hereby set aside. The bail applications of all accused petitioners in these cases (Criminal Revision Nos. 116, 239, 269, 138, 406, 592, 52, 744/07 and 405/2007) are Page 2754 therefore allowed subject to their complying with other conditions, relating to personal bonds and sureties.
31. As far as the next group of cases, where the statements of petitioners volunteering to deposit amounts, mentioned in Table II are concerned, no doubt, the decisions in M. Sreenivasulu Reddy, and M. Narayanan suggest that where the accused volunteer to pay amounts, the court should hold them down to the statements. Yet, the circumstances here cannot be lost sight of. During the hearing, the court had put the companies a query as to what would be the consequence if the accused were unable to raise, or pay the amounts. The answer merely was that they would have to suffer the consequent incarceration.
32. During arguments, the petitioner's counsel had urged about undesirable practices allegedly adopted by the special courts in not taking up the bail application, but allegedly creating circumstances whereby the accused were coerced by circumstances to agree to part with money. It would be difficult to accept such statements much less act upon them; yet the promise of impartial consideration of the merits of every case and public hearing demand that justice is not only done, but also seem to be done. Courts should eschew any aspect that can seem to be unfair. In these circumstances, the orders in the second group of cases, i.e. Criminal Revision Petition Nos. 108/07; 285/07; 75/07; 329/07; and 328/07 are set aside. The bail applications shall be heard afresh on their merits, and orders made in accordance with law. In the meanwhile, the petitioners shall be on interim bail, on other conditions relating to furnishing of personal bond and surety, as directed by the special court in the proceedings.
Cr. Rev No. 292/2007
33. In this revision proceeding, (arising out of CC No. 139/2007) the special judge, Shri R.K. Tewari, had recorded a statement that the petitioner was willing to deposit Rs. 1,00,000/-, on 9-3-2007. The bill amount was Rs. 10,00,000/-. The petitioner had moved a revision, being Cr. R.P. No 203/2007 alleging that he had not made any statement for depositing the sum. The special judge, accordingly was asked to consider the request for waiver of the condition, on liberty being granted to the petitioner to move an application in that regard. This Court's order was dated 4-4-2007. The application, along with an application for exemption of the accused from the proceedings, was moved. In the impugned order, the Judge, Shri Tewari curiously stated as follows:
Hon?ble High Court of Delhi in its order dated 4-4-07 has directed this Court to deal the application in accordance with law and while dealing with the application in accordance with law, two results would have followed. Either the accused would have been released on bail on merits or his bail would have been rejected but the absence of the accused has frustrated the said purpose. Issue NBW against the accused through SHO, PS Okhla, New Delhi, for 1-5-2007?
The matter did not rest here. On 1-5-2007 the report on NBW was that the accused petitioner was ill. The Special Judge discarded this report, Page 2755 saying that no name of the hospital could be traced out and accused was not available. He therefore issued process under Section 82/83 Cr. PC, even being mindful of the previous order of this Court. This Court, in these circumstances, permitted the petitioner to move an appropriate application, by its order dated 2-5-2007. The application, moved for cancellation of the notice under Section 82 was rejected stating that the court could consider it if the accused was brought before it. Interestingly, the counsel's presence was not recorded in the orders dated 1-5- 2007 or 4-5-2007; only the complainant's counsel's presence as deemed APP was recorded. These facts were brought to the notice of this Court, which on 29-5- 2007, also recorded petitioner?s counsel's statement that the petitioner would deposit Rs. 2,00,000/- with the court within a week, and file an undertaking in the court of the Special Judge to that effect. On 2-6-2007, Shri Tewari, in the course of his order stated as follows:
Admitted said amount is neither a fine nor a penalty nor a decretal amount of a civil court and as this special court is sitting at Malvina Agar, New Delhi a much distant place from otherwise ordinarily established courts of law in Delhi and no infrastructure ire the number of Pay and Accounts Office has been allotted to deposit such kind of contingency amount, has been provided. As such the accused may take appropriate steps for approaching the Wimbledon's High Court of Delhi seeking directions as to where the said amount of Rs. 2 laths is to be deposited in view of the said position with this Special Court. Subject to the said direction the accused is enlarged on bail on merits on the previous terms and conditions.
34. The above narrative shows that the Special Judge refused to consider the matter in the light of the previous order of the court. The tenor of his orders, particularly dated 27-4-2007, 1-5-2007 and the later order of 4-5-2007 spell out a barely disguised defiance of this Court's directions. By rejecting the applications on 27-4-2007, without considering them on merits and proceeding to issue non-bailable warrants and later, directing proceedings under Sections 82/83, he acted most injudiciously. Such an approach is deplorable; it can undermine public confidence in the impartiality of the judicial process. In these circumstances, the petition is allowed; the petitioner had been enlarged on bail subject to "clarifications" by the court. Since the court is unable to keep the deposit and had wanted the amount to be paid to the complainant, according to the previous order, the petitioner's application is allowed without condition of deposit of any amount and subject to his furnishing bond and surety, in terms directed by the Special Judge.
Cr. Rev 310/2007
35. The petitioner here had approached this Court on a previous occasion, alleging that the Special Court wrongly recorded his statement about paying Rs. 5 laths as a condition for grant of bail. The court had granted him liberty to move the special judge to waive the condition. By the impugned order, the special judge, Mr. Bewaring stated that he had never Page 2756 imposed a condition. Instead of considering the bail application, on its merits in the light of the order, after rejecting the application of waiver, the judge, by his order again sought to take umbrage with this Court's order. In the order, the special judge quoted Rajender?s order and the order in N.C. Agarwal v. State, to state that the court has the power to impose conditions, and now directed the accused petitioner to deposit Rs. 4 lakh as a condition for bail.
36. One can only hope that the approach of the special judge here was of not a deliberate defiance. Textually, the order certainly conveys such an impression. Even while saying that the court has power to impose conditions for depositing amounts, this Court, in Rajender, cautioned as follows:
No doubt, the Special Judge has power to impose such a condition. However, since the Special Judge is to ultimately decide the civil liability as well, while directing the accused to deposit a particular amount at the time of grant of bail, the Special Judge should not be influenced by the amount of the bill alone. He should consider, at least prima facie, the propriety of issuing bill of a particular sum in a particular case, albeit on the presumption that there was theft of electricity. Formula for raising such bills is provided under the Act and the rules framed there under.
In this case, the BSES Rajdhani Ltd issued a?theft bill? on 3-4-2006 for Rs. 16,40,292/- to the present petitioner. However, final amount was Rs. 14,72,424/- after adjusting credit for assured period. The complaint was filed in January 2007. Summons was issued on 13-2-2007. Neither the previous order, recording the statement about depositing Rs. 5 lakhs nor the present impugned order, rejecting the application for waiver, and imposing the fresh condition of the petitioner having to deposit Rs. 4 lakhs as condition for bail, discusses the propriety of the claim in the bill (as required in Rajender) or the reason why a condition for pre-deposit was necessary. Such unreasoned orders cannot, in any case, be upheld. The impugned order is therefore, set aside to the extent it imposes a condition for deposit of Rs. 4,00,000/- for granting bail. The petitioner shall be enlarged on bail on his furnishing bond for Rs. 50,000/- and one surety of the same amount, to the satisfaction of the special court. Bail Application No. 1042/2007
37. The electricity company had issued a "theft bill" here to the petitioner on 27-2-2006, for Rs. 9,83,016/-; the billing load was 20.401 KW. Initially, the special judge, Shri Tewari recorded that the petitioner was willing to deposit Rs. 2,00,000/- as condition for bail, by order dated 23-1- 2007. The petitioner moved an application for reducing the amount to Rs. 50,000/-, contending that he was a poor man, unable to raise the amount. By the impugned order, the special judge held that the Act created an economic offence, where persons booked are "white collar" offenders. He held, after noting the allegations outlined in the inspection report and the materials shown to him by way of photographs, that in this backdrop that the onus to prove means read was shifted and the liability in the traditional offence on the prosecution to establish the guilt of the accused Page 2757 beyond reasonable doubt was not only dispensed with but onus was shifted on accused to prove that he did not commit the crime with means read or guilty intention. Considering the said position of law and shift in the said onus on the accused and considering the enormous connected load used by the accused on the allegation of theft, I am not inclined to grant him the bail on merits. Hence, his bail application is hereby rejected. He is taken in judicial custody.
38. To put it mildly, the reasoning is startling; it is nonetheless indefensible. If the logic were to be sustained, there is no need for the court to look beyond the allegations in the complaint since the "onus" to prove innocence lies on the accused; he is considered to be an offender and even pre-trial, not entitled to liberty. This flies on the face of all canone of fair-play; if sustained, the order may be susceptible to the charge of predilection of the judge against accused. In any case, no reasons why waiver or reduction of the amount to Rs. 50,000/- cannot be granted are disclosed. The petitioner is, therefore, enlarged on bail, in terms of the previous order of this Court, dated 21 May, 2007.
Cr. Rev Petition No. 265/2007
39. Here, the special judge had recorded that the petitioner was willing to deposit Rs. 3,00,000/- as against a bill of Rs. 13,94,723/-. The petitioner had entered into a single point delivery contract with BSES Rajdhani, for supply of electricity and common billing to a number of residential units. The contract was terminated by BSES, alleging that the petitioner had failed to perform his contractual obligations in laying insulated low voltage wires on poles resulting in poor quality supply and excessive billing. Thereafter, the theft bill? was issued. The petitioner had contended that he never gave an undertaking to pay Rs. 3 lakh, recorded by the special judge, Shri Tewari. This Court, in Crl. 242/2007 had suspended that direction and permitted the petitioner to move an application for waiver. By the impugned order dated 20-4-2007, the application for waiver was rejected; reliance was placed on Rajender's case. The matter was listed for 25th April, 2007. In the present revision, this Court suspended operation of the order requiring deposit of Rs. 3 lakh, for granting bail, while issuing notice. On an overall consideration of the facts, I am of the opinion that the direction cannot be sustained. Accordingly the petitioner shall be enlarged on bail, on his furnishing personal bond for Rs. 50,000/- and a surety of the same amount to the satisfaction of the special judge.
40. The revision petitions are accordingly disposed in the terms indicated above. The Special judges shall consider the bail applications in the second batch of cases (Cr. Rev. Petitions 108/07; 285/07; 75/07; 405/07; 329/07; 328/07) on their merits, in the light of the reasons indicated in the preceding paragraphs and pass fresh orders within six weeks.
Order dusty.
