The Madhya Pradesh High Court has held that inherent powers under Section 482 CrPC can be exercised to amend bail condition and Section 362 CrPC is no bar in the same.
The Division Bench of Justice Sheel Nagu and Justice M.S. Bhatti in that view modified condition of bail of two persons accused of tax evasion, thereby allowing them to travel abroad in furtherance of their business and professional pursuits
Learned Counsel for the prosecuting agency contended that no recall, review or modification of an order passed under Cr.P.C. is permissible by exercise of inherent powers u/S.482 of Cr.P.C. Reliance was placed on Union of India & Ors. Vs. Atul Shukla etc., 2014 Latest Caselaw 611 SC.
The Court after taking into consideration the relevant provision, noted that a bare perusal of aforesaid provision, in particular Section 439(1) (b) of Cri.P.C. it is vivid that High Court is vested with the power to modify any condition imposed by a Magistrate while passing an order of bail u/S.437 of Cr.P.C. whereas Section 439(1)(a) of Cr.P.C. empowers the High Court to release a person on bail but when doing so in connection with offences punishable with imprisonment of seven years or more under Chapter VI, XVI and XVII of IPC or of abetment or conspiracy or attempt to commit such offences, then this Court in its discretion may impose any condition considered necessary in the attending facts and circumstances.
Noting that it is undisputed that travelling abroad is one of the concomitants of right to liberty enshrined Article 21 of the Constitution subject to compliance of relevant laws which regulates such travel, the Court stated that it is trite law that concept of bail flows out of fundamental right of personal liberty.
"The procedure for granting and denying bail or subjecting order of bail to conditions is governed by procedure statutorily laid down by Cr.P.C. and through judicial pronouncements rendered by Apex Court, which are law of the land under Article 141 of Constitution. It is also settled that grant of bail is a rule whereas its denial is an exception. Once bail is granted subject to certain conditions by the High Court u/S.439(1)(a) of Cr.P.C. as is the case herein, the power to modify or delete the conditions subject to which bail is granted, is also inherently vested with the High Court."
High Court not Toothless Tiger
The Court elucidated that the power of amending or deleting any condition, subject to which bail order u/S.439(1)(a) of Cr.P.C. is granted, is not expressly provided in Cr.P.C therefore, the only course available for seeking and granting modification/ deletion of such a condition is by invoking the inherent powers of this Court u/S.482 of Cr.P.C. to ensure the ends of justice.
"Section 482 of Cr.P.C. saves inherent powers of this Court to be exercised inter alia to secure the ends of justice. The ends of justice can only be secured when in absence of any express provision this Court is not prevented from deleting/modifying any of the conditions subject to which an order of bail u/S.439(1)(a) of Cr.P.C. is passed. If such inherent powers are otherwise not available to this Court u/S.482 of Cr.P.C., then object of insertion of Section 482 of Cr.P.C. would stand defeated and this Court would be rendered a toothless tiger"
The Legislature while enacting the Code of Criminal Procedure could never have approved a situation where this superior Court is handicapped to exercise its inherent powers to modify/delete a condition imposed u/S.439(1)(a) of Cr.P.C. despite existence of compelling circumstances merely because of absence of enabling provision in the Cr.P.C., the Court remarked.
"The object behind bestowing inherent powers in this Court is to do complete justice and to prevent miscarriage of justice. The inherent powers are saved with this Court to be exercised in such circumstances where cause for doing complete justice or preventing failure of justice exists, but there is no express provision in Cr.P.C. As such Constitutional Courts are saved with such inherent powers to do complete justice without being inhibited or disabled by absence of enabling provision."
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