Suresh vs State Rep By Its
2023 Latest Caselaw 4275 Mad

                                                                               Crl.O.P.No.7386 of 2023

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 17.04.2023

                                                       CORAM:

                                  THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                               Crl.O.P.No.7386 of 2023

                     Suresh                                                ... Petitioner

                                                          Vs.

                     State rep by its
                     The Inspector of Police,
                     Thiruvalam Police Station,
                     Vellore District.
                     Crime No.252 of 2022                                            ... Respondent



                     PRAYER: Criminal Original Petition filed under Section 439(1)(b) of the
                     Code of Criminal Procedure, to modify the condition imposed on the
                     petitioner “1.The petitioner/accused should execute a bond for a sum of
                     Rs.25,000/- with two sureties each like sum to the satisfaction of the learned
                     Judicial Magistrate No.I, Salem and the sureties should be close relatives
                     are necessary and they should produce necessary documents to own
                     valuable property” in Crl.MP.No.362 of 2023 order dated 16.03.2023 on the
                     file of Special Judge for EC/NDPS Act Cases, Salem.




                                                                                                    1

https://www.mhc.tn.gov.in/judis
                                                                                   Crl.O.P.No.7386 of 2023

                                        For Petitioner     : Mr.W.Camyles Gandhi

                                        For Respondent     : Mr.N.S.Suganthan
                                                             Government Advocate (Crl. Side)


                                                           ORDER

This Criminal Original Petition is filed to modify the condition No.1

imposed in Crl.M.P.No.362 of 2023 dated 16.03.2023 on the file of the

Special Judge for EC/NDPS Act Cases, Salem.

2. One of the conditions imposed by the Special Judge for EC/NDPS

Act Cases, Salem while granting bail to the petitioner in a case of alleged

possession of 4 kg of Ganja, to the effect that the petitioner shall execute a

bond for a sum of Rs.25,000/- with two sureties each for a like sum and the

sureties should be close relatives and they should produce necessary

documents for owning a valuable property is challenged by the petitioner on

the ground that it is onerous.

3. Mr.Camyles Gandhi, learned counsel for the petitioner would

submit that the petitioner hails from a poor family and he was arrested in

Cr.No.252 of 2022 on 26.09.2022 for having been found in possession of 4

https://www.mhc.tn.gov.in/judis Crl.O.P.No.7386 of 2023

kgs of ganja and the Special Judge for EC/NDPS Act Cases, Salem has

rightly considered the fact that the petitioner had been in judicial custody

for more than the statutory period for bail and granted default bail to him,

however, had imposed an onerous condition insisting for execution of bond

for a huge sum with two sureties, who shall produce documents for

possession of valuable property. He would further submit that the petitioner

has no relative with such a financial background, as a consequence, despite

the fact that the default bail was granted on 16.03.2023, his personal liberty

guaranteed by statute has been refused and he is still languishing in jail and

thereby the indefeasible right accrued to the petitioner has been frustrated.

4. The learned counsel for the petitioner would further submit that

the condition imposed by the learned Trial Judge while releasing the

petitioner on statutory bail/default bail under Section 167(2) of Cr.P.C is

contrary to the scheme of Section 167 Cr.P.C. He would also submit that

the Apex Court and this Court have time and again observed that the

scheme of Code of Criminal Procedure delineates that provisions of

Section 167 Cr.P.C., give due regard to the personal liberty of a person and

when the charge sheet has not been submitted within 60 days or 90 days, an

https://www.mhc.tn.gov.in/judis Crl.O.P.No.7386 of 2023

accused cannot be detained by the police and the right in which accused

becomes entitled to default bail and it cannot be frustrated either by the

prosecution or the Court.

5. The learned counsel for the petitioner would further submit that

when a court feels that a prima facie case has been made out for the purpose

of granting bail, by no stretch of imagination, any onerous condition can be

imposed, thereby thwarting and making the order inexecutable as it amounts

to denial of bail. In support of his contention, the learned counsel for the

petitioner has relied on the following judgments:-

i) Saravanan Vs. State represented by the Inspector of Police (2020) 9 SCC 101.

ii) Sakthivel Vs. Inspector of Police, Belukurichi Police Station, Namakkal District (2015 (2) MWN (Cr.) 438)

iii) Navaneetha Krishnan Vs. Inspector of Police, Natrampalli Police Station Vellore District (2015 (2) MWN (Cr.) 53).

iv) Sundar @ Ashok Vs. Inspector of Police, T-16 Nazarathpet Police Station (Crl.O.P.No.993 of 2017 dated 18.01.2017)

6. Learned Government Advocate (Criminal Side), opposing for grant

of bail, would submit that the learned Trial Judge has rightly imposed the

https://www.mhc.tn.gov.in/judis Crl.O.P.No.7386 of 2023

condition on the petitioner and thereby the petitioner is not entitled for any

indulgence and the present petition is liable to be dismissed.

7. Heard the learned counsel appearing on either side and perused the

materials placed before this Court.

8. Admittedly, the bail granted to the petitioner is a default bail as he

had been in judicial custody for more than the statutory period of 90 days

and charge sheet has not been filed by the respondent police, however, the

court below has imposed such a onerous condition frustrating the purpose of

granting the default bail. On this aspect, as rightly pointed out by the

learned counsel for the petitioner, the Apex Court in number of decisions,

has held that imposition of onerous condition while granting default bail is

nothing but denial of bail.

9. In Saravanan Vs. State represented by the Inspector of Police

(2020) 9 SCC 101, a Full Bench of the Apex Court has held as under:-

"9. Having heard the learned counsel for the respective

parties and considering the scheme and the object and

https://www.mhc.tn.gov.in/judis Crl.O.P.No.7386 of 2023

purpose of default bail/statutory bail, we are of the

opinion that the High Court has committed a grave error

in imposing condition that the appellant shall deposit a

sum of Rs 8,00,000 while releasing the appellant on

default bail/statutory bail. It appears that the High Court

has imposed such a condition taking into consideration

the fact that earlier at the time of hearing of the regular

bail application, before the learned Magistrate, the wife

of the appellant filed an affidavit agreeing to deposit Rs

7,00,000. However, as observed by this Court in catena of

decisions and more particularly in Rakesh Kumar Paul

[Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67

: (2018) 1 SCC (Cri) 401] , where the investigation is not

completed within 60 days or 90 days, as the case may be,

and no charge-sheet is filed by 60th or 90th day, the

accused gets an “indefeasible right” to default bail, and

the accused becomes entitled to default bail once the

accused applies for default bail and furnish bail.

Therefore, the only requirement for getting the default

https://www.mhc.tn.gov.in/judis Crl.O.P.No.7386 of 2023

bail/statutory bail under Section 167(2) CrPC is that the

accused is in jail for more than 60 or 90 days, as the case

may be, and within 60 or 90 days, as the case may be, the

investigation is not completed and no charge-sheet is

filed by 60th or 90th day and the accused applies for

default bail and is prepared to furnish bail. No other

condition of deposit of the alleged amount involved can

be imposed. Imposing such condition while releasing the

accused on default bail/statutory bail would frustrate the

very object and purpose of default bail under Section

167(2) CrPC. As observed by this Court in Rakesh Kumar

Paul [Rakesh Kumar Paul v. State of Assam, (2017) 15

SCC 67 : (2018) 1 SCC (Cri) 401] and in other decisions,

the accused is entitled to default bail/statutory bail,

subject to the eventuality occurring in Section 167 CrPC,

namely, investigation is not completed within 60 days or

90 days, as the case may be, and no charge-sheet is filed

by 60th or 90th day and the accused applies for default

bail and is prepared to furnish bail. "

https://www.mhc.tn.gov.in/judis Crl.O.P.No.7386 of 2023

10. In Sakthivel Vs. Inspector of Police, Belukurichi Police Station,

Namakkal District (2015 (2) MWN (Cr.) 438) this Court has held that the

bail condition should be executable and it should not be onerous and

oppressive in nature. In Navaneetha Krishnan Vs. Inspector of Police,

Natrampalli Police Station Vellore District (2015 (2) MWN (Cr.) 53), this

Court has observed that the conditions which are in the nature of onerous

and which could not be complied with by the accused, would be like

granting bail by one hand and taking it away by another hand. In Sundar @

Ashok Vs. Inspector of Police, T-16 Nazarathpet Police Station

(Crl.O.P.No.993 of 2017 dated 18.01.2017), this Court has held that Court

cannot expect an accused or surety to be a propertied person.

11. In the case on hand, the Court below had directed the petitioner

to furnish two sureties each and the sureties should be close relatives and

they should produce necessary documents to own a valuable property. It is

the case of the petitioner that he is a person from the lower strata of the

society and no propertied person is ready to stand as surety to him. Her

statement about his status cannot be simply brushed aside considering the

https://www.mhc.tn.gov.in/judis Crl.O.P.No.7386 of 2023

fact that though he was granted bail by the court below on 16.03.2023, he

could not come out on bail even after about 1 month, due to his inability to

comply with one of the conditions imposed by the court below.

12. In such circumstances, in the opinion of this Court, the condition

pointed out by the petitioner, imposed by the lower Court below, is onerous

inviting this court's interference. Accordingly, the said condition imposed

by the court below is modified to the effect that

"The petitioner shall execute a bond for a sum of

Rs.10,000/- with two sureties, each for a like sum to the

satisfaction of the learned Judicial Magistrate No.1,

Salem, one of which must be a close relative."

13. It is made clear that the other conditions imposed by the court

below remain unaltered. The Criminal Original Petition is ordered

accordingly.

17.04.2023

Index:Yes/No Internet: Yes/No vkr Note to office:- Issue copy of this order by 18.4.2023.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.7386 of 2023

A.D.JAGADISH CHANDIRA.,J.

vkr

To

1. Special Judge for EC/NDPS Act Cases, Salem.

2. Judicial Magistrate No.I Salem.

3. The Inspector of Police, Thiruvalam Police Station, Vellore District.

Crl.O.P.No.7386 of 2023

17.04.2023

https://www.mhc.tn.gov.in/judis