2024 INSC 567
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SLP (Crl.) No.2011 of 2024
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. of 2024
(Arising out of SLP (Crl.) No.2011 of 2024)
Sudeep Chatterjee …Appellant(s)
Versus
The State of Bihar & Anr. …Respondent(s)
J U D G M E N T
C.T. RAVIKUMAR, J.
Leave granted.
1. ‘Lex non cogit ad impossibilia’ means ‘the law does
not compel a man to do what he cannot possibly
perform’. The said maxim is being followed as an adage
and with alacrity. We are constrained to refer to the said
maxim on being pained to see that despite a catena of
decisions deprecating the practice of putting onerous
conditions for pre-arrest bail such orders are being
passed without giving due regard to the binding
precedents.
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2. The case on hand arises from an order dated
30.08.2023 passed by the High Court of Judicature at
Patna in Criminal Miscellaneous No.57492 of 2023
whereby and whereunder the High Court granted
provisional pre-arrest bail in Complaint Case No.1100 of
2021 registered against the appellant herein, alleging
commission of offences punishable under Section 498A
of the Indian Penal Code, 1860 (for short ‘the IPC’) and
Section 4 of the Dowry Prohibition Act, 1961.
3. Heard the learned counsel appearing for the
appellant, learned counsel appearing for the State and
also the learned counsel appearing for the second
respondent. The second respondent filed reply affidavit
and resisted the prayer for interfering with the
conditions put in the impugned order. The counsel for
the State endorsed the view and contentions raised on
behalf of the second respondent.
4. Complaint Case No.1100 of 2021, produced in this
proceeding as Annexure P-1, would reveal that distrust
and discordancy among the couple viz., the appellant
and the second respondent led to disputes and then
divorceable situation. In fact, the appellant moved a
petition for dissolution of their marriage before the Court
of learned Principal Judge, Family Court, Bhagalpur.
Complaint Case No.1100 of 2021 has been filed by the
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second respondent-wife alleging commission of the
aforesaid offences against the appellant. Earlier, in
connection with the aforesaid Complaint Case, the
appellant moved an application for pre-arrest bail
before the Court of Sessions Judge, Katihar. On its
dismissal vide order dated 24.05.2023, the abovementioned application for an anticipatory bail was
moved before the High Court which culminated in the
impugned order. The relevant paragraphs in the
impugned order that compelled us to make the opening
remarks read thus: -
“6. Considering the desire of the parties, both
the parties are directed to file a joint affidavit
before the Court below to the effect that the parties
have agreed to live together and petitioner must
give specific statement in the said joint affidavit that
he undertakes to fulfill all physical as well as
financial requirement of the complainant so that
she can lead a dignified life without any
interference of any of the family members of the
petitioner.
7. If such affidavit is filed within a period of
four weeks, petitioner, above named, is directed to
be released on Provisional Bail, in the event of his
arrest or surrender before the Court below within
a period of four weeks from today, on furnishing
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bail bond of Rs. 10,000/- (Ten Thousand) each with
two sureties of the like amount each to the
satisfaction of learned C.J.M, Katihar in connection
with Complaint Case No.1100 of 2021, subject to
the condition as laid down under Section 438(2) of
the Cr.P.C.
8. It is made clear that Provisional bail shall
continue till four weeks from the date of passing of
this order to enable him to file joint affidavit along
with withdrawal order of the divorce case.”
5. Before scanning the conditions as mentioned
above, we think it appropriate to refer to some of the
relevant decisions of this Court, in the contextual
situation. A Constitution Bench of this Court in Shri
Gurbakash Singh Sibbia & Ors. v. State of Punjab1 held
thus: -
“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
1
(1980) 2 SCC 565
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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 [Maneka Gandhi v.
Union of India, (1978) 1 SCC 248], 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 to be found therein.”
(emphasis supplied)
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6. In Parvez Noordin Lokhandwalla v. State of
Maharashtra & Anr.
2
this Court held: -
“…The human right to dignity and the
protection of constitutional safeguards should
not become illusory by the imposition of
conditions which are disproportionate to the
need to secure the presence of the accused, the
proper course of investigation and eventually to
ensure a fair trial. The conditions which are
imposed by the court must bear a proportional
relationship to the purpose of imposing the
conditions. The nature of the risk which is
posed by the grant of permission as sought in
this case must be carefully evaluated in each
case.”
7. We do not think it necessary to burden this
judgment by multiplying the authorities on this subject
as the constant and consistent view of this Court on
matters granting a prayer for bail under Section 438 of
the Code of Criminal Procedure, 1973 (for short ‘the
Cr.P.C.’) is that after forming an opinion, taking note of
all relevant aspects, that bail is grantable, conditions
shall not be put to make it impossible and impracticable
2
(2020) 10 SCC 77
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for the grantee to comply with. As held by this Court in
Parvez Noordin’s case (supra), the ultimate purpose of
putting conditions while granting pre-arrest bail is to
secure the presence of the accused and thus, eventually
to ensure a fair trial and also for the smooth flow of the
investigating process.
8. In view of the unfortunate instances imposing very
onerous conditions, especially in cases which are
nothing but an off-shoot of matrimonial discordance, we
would reiterate the view that courts have to be very
cautious in imposing conditions while granting bail upon
finding pre-arrest bail to be grantable. This is to be done
warily, especially when the couple concerned who are
litigating in divorce proceedings, jointly though
lukewarmly, agreed to attempt to reconcile and re-unite.
The impugned order itself would reveal that the parties
who were about to part company, rethought and
expressed their readiness to bury the hatchet and to reunite and the appellant has also agreed to withdraw the
divorce case. One should not be oblivious of the fact that
a boy or girl, will be bonded to kith and kins besides
parents and siblings and such bonded relationships
cannot be severed solely due to affine and affinity
towards the affinal as also cognate relationships has to
be taken forward with same cordialness. Relation
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through marriage sans support from both the families
may not flourish but may perish. Viewed from any angle,
putting conditions as has been done in this case,
requiring a person to give an affidavit carrying a specific
statement in the form of an undertaking that he would
fulfil all physical as well as financial requirements of the
other spouse so that she could lead a dignified life
without interference of any of the family members of the
appellant, can only be described as an absolutely
improbable and impracticable condition. The second
respondent may not misuse such a condition. However,
giving such a carte blanche, is nothing but making one
dominant over the other, which in no way act as a catalyst
to create a comely situation in domesticity. On the
contrary, such conditions will only be counterproductive. There can be no doubt that a re-union after
a marital discord is possible only if the parties are put to
a conducive situation to regain the mutual respect,
mutual love and affection. No doubt putting a condition
that one of the parties should undertake to fulfil all
physical as well as financial requirements of the other
party could not bring about such a situation. It may
compel one among the couple to be susceptive and turn
the other supercilious. When the couple who are trying
to bridge their emotional differences putting one among
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them under such an onerous condition would deprive a
dignified life not only to the grantee but to both. It is to
be noted that with the said conditions the appellant was
granted only a provisional bail. In short, we stress upon
the need to put compliable conditions while granting
bail, recognizing the human right to live with dignity and
with a view to secure the presence of the accused as also
unhindered course of investigation, ultimately to ensure
a fair trial. In respect of matters relating to matrimonial
cases, conditions shall be put in such a way to make the
grantee of the bail as also the griever to regain the lost
love and affection and to come back to peaceful
domesticity. In this case, the parties, obviously,
expressed their desire and willingness to live together
and in that regard the appellant-husband, expressed his
willingness to withdraw the divorce case.
9. The above discussions tend us to hold that the
conditions as mentioned above contained in paragraph
6 of the impugned order for the release of the appellant
on the provisional bail cannot be sustained and as such
the said conditions to give undertaking that the appellant
would fulfil all physical and financial requirements by
way of an affidavit are set aside. However, this shall not
be understood to have an order releasing both of their
marital obligations and duties and we hope and trust that
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the couple will continue to strive to restore their
domesticity.
10. The order granting the bail is made absolute and
the appellant in the event of his arrest be released on bail
subject to the same terms stipulated by the High Court
under the impugned order regarding suretyship as also
the liability to comply with conditions as laid down under
Section 438(2), Cr. P.C. Needless to say, that this will
further be subject to the final outcome of the pending
complaint case. The impugned order stands set aside
only to the aforesaid extent and accordingly, the appeal
stands disposed of.
11. Pending application(s), if any, stands disposed of.
……………………, J.
(C.T. Ravikumar)
………………….….……, J.
(Prashant Kumar Mishra)
New Delhi;
August 02, 2024.
