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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M.Nagaprasanna, J.
Vaibhavaraj Utsav S/O V Rajamohan - Petitioner
Versus
State By Chandra Layout P.S., Rep. By State Public Prosecutor - Respondent
Criminal Petition No. 5847 of 2024
Decided On : 09-07-2024
Bail - Criminal Procedure - Sections 439(1)(b) - The court emphasized that imposing a bank guarantee as a condition for bail is illegal, referencing multiple Supreme Court decisions that established this principle.
Fact of the Case:
The petitioner was charged with misappropriation and theft, leading to a bail application. The court granted bail with conditions, including a bank guarantee, which the petitioner sought to modify.
Finding of the Court:
The court found that the condition of a bank guarantee for bail was illegal, referencing Supreme Court precedents that disallowed such conditions.
Issues: Whether the court can impose a bank guarantee as a condition for granting bail.
Ratio Decidendi: The court held that requiring a bank guarantee for bail is illegal, aligning with established Supreme Court rulings.
Result: The petition is allowed, and the order requiring a bank guarantee is set aside.
ORDER :
M.Nagaprasanna, J.
The petitioner is before this Court calling in question an order dated 17.05.2024 passed in Crl.Misc.No.3822/2024 by the Court of Sessions.
2. Heard the learned counsel Sri.Mohammed Tahir, appearing for the petitioner and the learned High Court Government Pleader Sri.Harish Ganapathi, appearing for the respondent.
3. Facts in brief, germane, are as follows:
A crime comes to be registered in Crime No.53/2021 against the petitioner for offences punishable under Sections 406, 465, 471 and 379 read with Section 34 of the IPC by one Dr.Kiran Kamala. The allegation is that the accused has misappropriated the funds of the organization and also thieved certain documents. The misappropriation was projected at Rs.1,08,50,000/- in the account of one Vimukthi Trust. The police after investigation have filed a charge sheet against the petitioner in C.C.No.31039/2021. The petitioner then applies to enlarge the regular. The petitioner then applies to be enlarged on regular bail. The concerned Court grants regular bail, subject to certain conditions. The order granting bail reads as follows:
Bail petition filed under Sec. 439 of Cr.P.C. by the Petitioner is allowed.
Petitioner is ordered to be released on regular bail in Cr. No.53/2021 on executing personal bond for Rs.50,00,000/- with one surety for the likesum. The accused shall furnish bank guarantee to the Trust to the tune of Rs. One crore after release from prison within 3 months on the following conditions.
1. The Petitioner shall not tamper with the Prosecution witnesses either directly or indirectly in any manner.
2. The petitioner shall appear before court regularly.
3. The petitioner shall not abscond from the residence and should furnish the address proof to the concerned police
4. He shall not involve in any kind of offence.
5. He shall not leave the jurisdiction without prior permission of jurisdictional Magistrate in writing.
6. He shall not leave the country and has to surrender his passport before the trial court
If any of the above conditions violates the IO is at liberty to move for cancellation of bail.”
The petitioner was directed to furnish a bank guarantee to the tune of Rs. one crore within three months after release from prison. The petitioner then files an application seeking modification of the order under Section 439(1)(b) of the Cr.P.C. The concerned Court on 23.01.2024 accepts the modification partially and disposes the matter by the following order:
Petition filed by the petitioner u/sec. 439(1B) of Cr.P.C. is allowed in part.
The order passed in Crl.Misc. No.1388/2023 on the file of this Court dated 14.3.2023 is hereby modified.
The petitioner shall furnish bank guarantee to the Trust to the tune of Rs. 50 lakhs instead of Rs. One crore.
Condition No.6 of the bail order is hereby relaxed.
The other conditions of the bail order remain intact.”
Instead of Rs.one crore, the petitioner was directed to furnish a bank guarantee of Rs.50/- lakhs. This is again sought to be modified by filing an application under Section 439(1)(b) of Cr.P.C. before the concerned Court. The Court, rejects the said application by the impugned order and therefore, the petitioner is before this Court, in the subject petition.
4. The issue is whether the Court would have imposed a condition of furnishing of bank guarantee of whatever amount it is, while granting bail. The issue need not detain this Court for long or delve deep into the matter. The Apex answering an identical circumstance has held that asking for a bank guarantee or a condition of furnishing a bank guarantee, while granting bail, is illegal. The Apex Court in the case of Subhash Chouhan v. Union of India and another 2023 SCC Online SC 110, has held as follows:
Imposing a bank guarantee as a bail condition is illegal, as established by the Supreme Court.
Bail – Imposition of condition for deposit of bank guarantee as a pre-deposit for bail is not proper.
Points of Law : If criminal proceedings are unwarranted, there can be no question of custody and in no circumstance can bail be made subject to the terms, which tantamount, in effect, to execution at....
The discretion of the court to impose conditions for bail under Section 167(2) Cr.PC should be exercised based on the nature of the offence and the specific circumstances of the case.
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