Onerous bail conditions requiring the accused to deposit large sums of money are disapproved by the Supreme Court and convert the criminal case into money recovery proceedings.

JUDGMENT :

1. This is an application filed by the applicant with a prayer inter alia for quashment of condition no.3(vi) imposed in order while releasing him on regular bail vide order dated 18.07.2023 passed in Criminal Miscellaneous Application No.5329 of 2023 by the learned Additional Sessions Judge, Surat and the order dated 25.07.2023 passed in Criminal Miscellaneous Application No.5701 of 2023 and thereby to modify / delete the said condition.

2. Heard learned advocate Mr.Samir Afzal Khan for the applicant and learned Additional Public Prosecutor Ms.Jirga Jhaveri for respondent State.

3. Rule. Learned Additional Public Prosecutor Ms.Jhaveri waives service of notice of Rule on behalf of respondent State.

4.1 Learned advocate Mr.Samir Afzal Khan relying upon judgments of Hon’ble Apex Court has submitted that the Hon’ble Supreme Court has often vide various judgments observed and disapproved the pre-condition of payment of money in granting bail, specifically in case of alleged cheating for offence under Sections 406, 420 of the Indian Penal Code which would tantamount to recovery proceedings on behalf the complainant which has been deprecated by the Apex Court.

4.2 Learned advocate Mr.Khan submitted that here in this case the applicant is suffering from pre-trial incarceration owing to the condition no.(iv) laid down by the learned 5th Additional Sessions Judge Surat in order dated 18.07.2023 passed in Criminal Miscellaneous Application No.5329 of 2023, whereby though the applicant has been released from jail is subjected to payment of money which due to his non- competency of making payment, would automatically turn into violation of such condition, as vide the said condition applicant would be forced to deposit the total amount as ordered by the bail court.

4.3 Learned advocate Mr.Khan submitted that thereafter an application being Criminal Miscellaneous Application No.5701 of 2023 was moved before the same Court for deletion of the condition (vi) but the Court vide order dated 25.07.2023 modified the condition. The modified condition reads thus:

“(vi) The applicant shall pay an amount of Rs.5 Lacs within a period of 15 days from passing of the original order i.e. 18.07.2023 and thereafter, shall continue to pay Rs.5 Lacs, every month on or before 7th Day of each English Calender Month, until the full amount of Rs.46 Lacs is paid to the Complainant. It is made clear that if the applicant / accused makes default in payment of any of the installments as per this order, the bail granted to the applicant / accused shall be deemed to have been cancelled.”

4.4 Learned advocate Mr.Khan submitted that applicant is still in jail as such condition would not give him the benefit of bail as he is directed to pay Rs.46/- Lacs which as per learned advocate Mr.Khan is in relation to the commercial transaction of cloth since the applicant is cloth merchant.

4.4.1 Learned advocate heavily relied upon the following decisions of the Hon’ble Apex Court reiterating that, the imposition of such condition of deposition of amount would tantamount to recovery proceedings on behalf of the complainant.

(i) Vijaykumar Deshraj Sethi vs. Senior Police Inspector and others reported in 2021 SCC Online Bombay 13950;

(ii) Ramesh Kumar vs. State of NCT of Delhi reported in 2023 SCC Online SC 766 and

(iii) Order dated 12.12.2022 passed in case of Sanjay Singh vs. State of Bihar in Special Leave Petition (Cri.) Diary No.36115 of 2022.

5. Learned Additional Public Prosecutor Ms.Jhaveri submitted that the order as read in whole would not mean that any onerous condition has been laid down as payment is required to be made only after his release from the jail. She further submitted that condition imposed thus would not prejudice the applicant as he would be entitled to his liberty in view of the bail order.

6. Having heard the learned advocates for both the sides, it would be necessary to refer to the observations made by the Courts in the above referred judgments.

6.1 In cas