Back
2007 (1) Bankmann 81
DELHI HIGH COURT
Badar Durrez Ahmed, J.
Sushil Suri — Petitioner
versus
State & Anr. — Respondents
Criminal Revision P. No. 277 of 2006
Decided on 3-5-2006
For the Petitioner:Mr. Vijay Kumar Aggarwal, Advocate.
For the Respondent/State:Mr. V. K. Malik, Advocate.
For the Respondent No. 2:Mr. Krishan Mahajan with Mr. Lalit K. Gupta, Advocates.
IMPORTANT POINT
In the bailable offence under Section 138 of Negotiable Instruments Act, while allowing bail to accused no such condition could be imposed by Court that accused shall take permission of Court prior to going abroad but could direct accused to inform Court in writing when leaving for abroad.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 436—Offence of dishonour of cheque—Bail—Court’s power to impose condition in bailable offence—Court while granting bail to petitioner-accused of offence of dishonour of cheques of value of about 2 crores directed petitioner to furnish bail bond with one surety in sum of Rs. 2 lacs and to seek court’s permission prior to going out of India—Revision challenging the condition and amount of bail to be too harsh, onerous and burdensome—No condition could be imposed while granting bail in bailable offence—Petitioner however could be directed to inform court in writing before he embarked on any foreign visit providing all details—Condition requiring petitioner to take prior permission of Court was liable to be set aside—In the facts and circumstances condition requiring one surety of Rs. 2 lakhs was not unreasonable. (Paras 9 to 11)
Result: Petition disposed of.
Badar Durrez Ahmed, J.—This petition which has been preferred under Sections 397/401/440 (2)/ 439 (1) (b) and 482 of the Code of Criminal Procedure, 1973 is directed against the Order dated 20.4.2006 passed by the learned Metropolitan Magistrate whereby the petitioner was directed to be released on bail on furnishing a bail bond in the sum of Rs. 2,00,000 along with a surety of the like amount. The Order granting bail also imposed the condition that “prior to going out of India, the accused persons shall seek the permission of the court.” The petitioner has challenged this Order on two counts; one that no condition can be imposed while granting bail under Section 436 insofar as bailable offences are concerned. According to the learned counsel for the petitioner, the condition requiring the petitioner to seek permission of the court before going out of India could not have been imposed while granting bail under Section 436 Cr.PC. The second point urged by the learned counsel for the petitioner is that the quantum of personal bond and surety of Rs. 2,00,000 is too harsh, onerous and burdensome and the same should be reduced to a reasonable sum.
2. The learned counsel for the petitioner placed reliance on a decision of a learned Single Judge of this court in the case of Shri Anup S. Khosla v. The State (NCT of Delhi).1 In the said decision in paragraph 3, this court placed reliance on a decision of the Kerala High Court in the case of Azeez v. State of Kerala,2 wherein it was observed that “the petitioner, being a person accused of only bailable offence, had a right to be enlarged on bail. There was no discretion with the court enabling the court to grant or refuse bail.” It was further pointed out that while granting bail, the court could not impose any condition which is not a term as to bail. In that case, the condition that a person accused of a bailable offence had to surrender his passport in court, was held not to be a term as to bail and, therefore, such a condition was held to be illegal and was set aside. In Anup S. Khosla (supra), this court agreed with the conclusion arrived at by the Kerala High Court.
3. The learned counsel for the petitioner then referred to the decision of the Madras High Court in the case of In Re the District Magistrate of Vizagapatam v. The Asst. Public Prosecutor for the Crown.3 In that case, a learned single Judge of the Madras High Court held that in bailable offences, it is well-settled that there is no question of discretion in granting bail as the words of the section are imperative. Of course, the Madras High Court in that case was considering the provisions of Section 496 of the old Criminal Procedure Code, which are in pari materia to the present provisions of Section 436 of the Code of Criminal Procedure, 1973. In that case, it was also held that the only choice for the court in cases of bailable offences was as between taking a simple recognizance of the principal offender or demanding security with surety. The learned counsel for the petitioner then referred to another decision of the Madras High Court in the case of In Re Kota Appalakonda and others v. Public Prosecutor for the Crown.4 In that case, the petitioners were charge-sheeted by the police under Sections 147, 148, 447, 324 and 323 of the Penal Code. They applied for bail and the Magistrate granted bail under Section 496 of the old Criminal Procedure Code subject to a condition in these words:
“...accused will be released on a bond of Rs. 250 with two sureties for like sums and on condition that they will not enter on the disputed land till disposal of the case.”
4. The question that arose before the Madras High Court was whether such a condition was one which was permissible under the law. The court observed that all the offences which the petitioners were charged with were bailable offences with regard to which a Magistrate had no discretion. He must release the accused on bail provided that the accused is willi
