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Saturday, September 14, 2013

“438. -anticipatory bail = whether the condition of depositing an amount of Rs. 1,00,00,000/- in fixed deposit for anticipatory bail is sustainable in law and whether such condition is outside the purview of Section 438 of the Code?= “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; iii) the possibility of the applicant to flee from justice; 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 order 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 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).” = However, the appellant-accused has to fulfill the following conditions: i) The appellant shall make himself available for interrogation by a police officer as and when required; ii) The appellant 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) The appellant shall furnish his address to the Investigating Officer who shall verify it and submit it to the trial Court under his signature. In case of change of address, it must be communicated to the Investigating Officer who shall verify it and intimate the same to the court concerned under his signature; and iv) The appellant shall not leave India without the previous permission of the trial Court. 18) The appeal is disposed of with the above directions.

                 published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40770             

   REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                      1 CRIMINAL APPEAL NO.1436 OF 2013

        (Arising out of Special Leave Petition (Crl.) No. 2 of 2013)



Sumit Mehta                                     …..Appellant(s)

            Versus

State of N.C.T. of Delhi                                .... Respondent(s)


                                      2

                               J U D G M E N T



P.Sathasivam,CJI.

1)    Leave granted.
2)    This appeal is directed against the order dated 18.12.2012  passed  by
the High Court of Delhi at New Delhi in Bail Application No.  1479  of  2012
whereby learned single Judge of the High Court while  granting
anticipatory bail 
to the appellant herein in a case registered against him vide  FIR  No.
104 dated 22.08.2012 for the offences punishable under  Sections  420,  467,
468 and 471 of the Indian Penal  Code,  1860  (hereinafter  referred  to  as
“IPC”) directed him to deposit an amount of Rs.1,00,00,000/- (one crore)  in
fixed deposit in the name of the complainant in any  nationalized  bank  and
to keep the FDR with the Investigating Officer.
3)    According to learned senior counsel for the appellant,  the  condition
for depositing the  amount  in  fixed  deposit  in  the  impugned  order  is
untenable in law and is outside the purview of Section 438 of  the  Code  of
Criminal Procedure, 1973 (in short “the  Code”).  
He  further  pointed  out
that learned single Judge, while imposing the condition for  depositing  the
amount in fixed deposit, has failed  to  appreciate  that  the  liberty  for
grant of anticipatory bail under Section 438 of the Code cannot be used  for
recovery of the alleged cheated  amount  to  the  complainant.   He  further
pointed out that while passing the  impugned  order,  learned  single  Judge
failed to consider that imposing a condition of depositing an amount of  Rs.
1 crore  in  fixed  deposit  would  make  the  grant  of  anticipatory  bail
impossible for the appellant.  He also pointed out that the  said  direction
is contrary to Article 21 of  the  Constitution  of  India  and  results  in
denial of liberty to the appellant.
4)    During the course  of  hearing,  one  Harnam  Jaspal-the  complainant,
filed Criminal Misc. Petition 18718 of 2013 for intervention.   Intervention
application is allowed.   Learned  counsel  appearing  for  the  intervener,
after highlighting the transaction between the intervener and the appellant-
accused and various factual aspects, contended that the High Court is  fully
justified in imposing such condition and there is no need to interfere  with
the same.
5)    On  behalf  of  the  respondent-State,  learned  Additional  Solicitor
General submitted that taking note of the dispute  between  the  complainant
and the appellant-accused, the condition imposed for grant  of  anticipatory
bail cannot be construed as onerous.
6)    We have carefully considered the rival  contentions  and  perused  all
the relevant materials.
7)    The only point  for  consideration  in  this  appeal  is
whether  the
condition of depositing an amount of Rs. 1,00,00,000/- in fixed deposit  for
anticipatory bail is sustainable  in  law  and  whether  such  condition  is
outside the purview of Section 438 of the Code?
8)    In order to answer the above question, it is useful to  refer  Section
438 of the Code which reads as under:
      “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;

            iii) the possibility of the applicant to flee from justice; 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
           order 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 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).”


A reading of the above provision makes it clear that a person should not  be
harassed or humiliated in order to satisfy the grudge or  personal  vendetta
of the complainant.  The grant of bail under Section 438(1) of the  Code  is
dependent on the merits and circumstances of a case.
9)    A Bench of five-Judges of this Court in Shri Gurbaksh Singh  Sibbia  &
Ors. vs. State of Punjab (1980) 2 SCC 565, while  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  and
held as under:

            “26. We find  a  great  deal  of  substance  in  Mr.  Tarkunde's
      submission 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 the 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 [1978]2SCR621 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 or 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.”


The aforesaid decision gives an abundant clarity as  to  the  intention  and
the scope of Section 438 of the Code.   Certainly, the power conferred  must
be exercised very sparingly and judiciously. However, this Court has  always
frowned on onerous condition being imposed  as  a  condition  precedent  for
granting anticipatory bail.

10)   In Amarjit Singh vs. State of NCT of Delhi (2009)  13  SCC  769,  this
Court ruled as under:

            “7. Having regard to the facts and circumstances of the  present
      case, we have no hesitation in  coming  to  the  conclusion  that  the
      imposition of condition to deposit the sum of Rs. 15 lacks in the form
      of FDR in the Trial Court is an unreasonable condition and, therefore,
      we set aside the said condition as a condition precedent for  granting
      anticipatory bail to the accused/appellant.”


11) In Sheikh Ayub vs. State of M.P. (2004) 13 SCC 457, it was held  that  a
direction to pay a portion of the amount misappropriated by the  accused  to
the complainant as a condition for bail is  unwarranted.  Similar  view  was
adopted by this Court in I. Glaskasden  Grace  and  Ors.  vs.  Inspector  of
Police and Anr. (2009) 12 SCC  769,  Ramathal  and  Ors.  vs.  Inspector  of
Police and Anr. (2009) 12 SCC 721 and  Sandeep  Jain  vs.  National  Capital
Territory of Delhi Rep. by Secretary, Home Deptt. (2000) 2 SCC 66.

12)   While exercising power under Section 438 of the  Code,  the  Court  is
duty bound to strike a balance between the individual’s  right  to  personal
freedom and the right of investigation of the police. For  the  same,  while
granting relief under Section 438(1), appropriate conditions can be  imposed
under Section 438(2) so as to ensure  an  uninterrupted  investigation.  The
object of putting such conditions should be to avoid the possibility of  the
person hampering the  investigation.  Thus,  any  condition,  which  has  no
reference to the fairness  or  propriety  of  the  investigation  or  trial,
cannot be countenanced as permissible under the law. So, the  discretion  of
the  Court  while  imposing  conditions  must  be  exercised   with   utmost
restraint.

13)   The law presumes an accused to be innocent till his guilt  is  proved.
As a presumably innocent person, he  is  entitled  to  all  the  fundamental
rights including the right to liberty guaranteed under  Article  21  of  the
Constitution.

14)   We also clarify that while granting anticipatory bail, the Courts  are
expected to consider and keep in mind the nature and gravity of  accusation,
antecedents of the applicant, namely,  about  his  previous  involvement  in
such offence and the possibility of the applicant to flee from justice.   It
is also the duty of the Court to ascertain whether accusation has been  made
with the object of injuring or humiliating him by having  him  so  arrested.
It is needless  to  mention  that  the  Courts  are  duty  bound  to  impose
appropriate conditions as provided under sub-section (2) of Section  438  of
the Code.
15)   Thus, in the case on hand, fixed deposit of Rs.  1,00,00,000/-  for  a
period of six months in the name of the complainant  and  to  keep  the  FDR
with the investigating  officer  as  a  condition  precedent  for  grant  of
anticipatory  bail  is  evidently  onerous  and  unreasonable.  It  must  be
remembered that the Court has not even come to the  conclusion  whether  the
allegations made are true  or  not  which  can  only  be  ascertained  after
completion of trial.  Certainly, in no words  are  we  suggesting  that  the
power to impose a condition of this nature  is  totally  excluded,  even  in
cases of cheating, electricity pilferage, white-collar crimes or  chit  fund
scams etc.
16)   The words  “any  condition”  used  in  the  provision  should  not  be
regarded as conferring absolute power on  a  Court  of  law  to  impose  any
condition that it chooses to impose. Any condition has to be interpreted  as
a  reasonable  condition  acceptable  in  the  facts  permissible   in   the
circumstance and effective in the pragmatic sense and should not defeat  the
order of grant of bail.  We are of the  view  that  the  present  facts  and
circumstances of the case do  not  warrant  such  extreme  condition  to  be
imposed.
17)   In the light of  the  above  discussion,  while  retaining  the  order
granting anticipatory bail  in  favour  of  the  appellant-accused,  namely,
Sumit Mehta, we set aside the direction relating to deposit of  FDR  in  the
name of the complainant.
 However, the appellant-accused has to fulfill  the
following conditions:
     i) The appellant shall make himself available for interrogation  by  a
        police officer as and when required;
    ii) The appellant 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) The appellant  shall  furnish  his  address  to  the  Investigating
        Officer who shall verify it and submit it to the trial Court  under
        his  signature.   In  case  of  change  of  address,  it  must   be
        communicated to the Investigating Officer who shall verify  it  and
        intimate the same to the court concerned under his signature; and
    iv) The appellant shall not leave India without the previous permission
        of the trial Court.
18)   The appeal is disposed of with the above directions.




                                    ……...…………………………CJI.


                                       (P. SATHASIVAM)










                                    ………….…………………………J.


                                      (RANJANA PRAKASH DESAI)
NEW DELHI;
SEPTEMBER 13, 2013
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