IMPORTANT POINTS
(1) Grant of pre-arrest bail – Law does not compel a man to do what he cannot possibly perform – Onerous conditions shall not be put to make it impossible and impracticable for grantee to comply with.
(2) There is need to put compliable conditions while granting bail, recognizing human right to live with dignity and with a view to secure presence of accused as also unhindered course of investigation, ultimately to ensure a fair trial.

JUDGMENT :

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.

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 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 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 Punjab, (1980) 2 SCC 565 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, especial