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Supreme Court of India
P. SATHASIVAM, CJI., RANJANA PRAKASH DESAI, J
Sumit Mehta
Versus
State of N.C.T. of Delhi
Criminal Appeal No. 1436 of 2013 (Arising out of Special Leave Petition (Crl.) No. 2 of 2013)
Decided On : 13-09-2013
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. (Para 12)
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. (Para 15)
Constitution of India, 1950- Article 21- 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. (Para 13)
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. (Para 15)
Indian Penal Code, 1860- Sections 420, 467, 468 and 471- Anticipatory bail - Order 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- 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. (Para 15)
Facts of the Case :
The learned single Judge of the High Court while granting anticipatory bail to the appellant in a case registered against him for the offences punishable under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 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.
Findings of the Court :
The present facts and circumstances of the case do not warrant such extreme condition to be imposed.
Result : Appeal is disposed of accordingly.
Judgment :-
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-
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