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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. Anand Venkatesh, J.
Umadevi – Appellant
Versus
State – Respondent
Crl. OP No. 3614 of 2019
Decided On : 18-02-2019
Indian Penal Code,1860 - Sections 229A, 120(B), 406, 420 - Criminal Procedure Code,1973 - Sections 173, 173(8),167(1),167(2), 317 - TNPID Act - Section 5 - Appeal Against conviction - Seek for Statutory Bail - Cheating and dishonestly inducing delivery of property - Petitioners husband was involved in construction business and was also running Finance Business in name of various firms - He used to collect money from general public by assuring that he will construct and hand over houses -However accused persons failed to keep up promise - By utilising various amounts collected from public accused persons purchased various movable and immovable properties in their names - There are totally accused persons in this case and are various firms run by accused persons is husband of this petitioner who had collected deposits and purchased movable and immovable properties and this petitioner is added as on ground that she was also involved in entire transaction - Accused person had collected from nearly depositors a sum - Husband of petitioner who was arrested was initially granted bail and thereafter bail was cancelled by an order - Petitioner was arrested and she filed a bail petition before Special Court and Special Court by an order granted bail to petitioner by imposing certain conditions - One of condition that was imposed was that petitioner has to deposit an amount of lakhs as cash security - This order came to be challenged before this Court in and this Court dismissed petition and refused to interfere with condition imposed by Court below - This order was further confirmed by Honble Supreme Court in SLP - As a result of same in spite of bail granted to petitioner was not able to come out on bail due to non compliance of condition imposed against petitioner - Petitioner has already suffered incarceration for more than days - Since no Final Report was filed within statutory period petitioner filed a bail petition seeking for Statutory Bail u/s - Said petition came to be dismissed by Court below by an order - Therefore present petition has been filed before this Court seeking for Bail - Where bail has already been granted to accused person by imposing certain conditions and in view of non compliance of condition accused was not able to come out of jail and in meantime investigation is not completed and Final Report is not filed within statutory period Whether petitioner can independently invoke provisions of Section 167(2) of Code of Criminal Procedure and seek for Statutory Bail? Whether any condition for cash security can be imposed at time of granting Statutory Bail to extent that accused person will not be able to comply with condition and thereby cannot come out on bail and which will indirectly deny statutory right given to accused person? - Held, A perusal of impugned order clearly shows that Magistrate mainly proceeded with case on merits of case while dismissing petitioner filed by petitioner mainly invoking provision under Section 167(2) Cr.P.C - Magistrate is not at all discussed right of petitioner accrued due to non filing of charge sheet within days as stipulated - As a matter of fact counsel for petitioner also placed reliance on a decision of this Court in etc - Others V State of Tamil Nadu wherein this Court has that filing of a defective charge sheet and returning same of rectify defect amounts to non-filing of charge sheet and will not defeat right of accused to be released on bail after expiry of days - In decision cited supra this Court has taken into consideration of decision rendered by Honourable Supreme Court in respect of right of accused under Section 167(2) Cr.P.C elaborately - In spite of above said reliance placed before Magistrate Magistrate simply brushed aside same with a single line that petitioner is not entitled for benefit of decision rendered by this Court as cited supra - It is very unfortunate that Magistrate has not even considered submission regarding non-filing of charge sheet within time stipulated and without giving any finding regarding such submission proceeded mainly on basis of merits of case - Submission of Government Advocate makes its crystal clear that investigation agency has filed charge sheet only - Earlier submission of Government Advocate that draft charge sheet was filed and same was returned for corrections would not amount to filing of a charge sheet as it is rightly by this Court in decision cited supra and filing a defective charge sheet and returning same to rectify defect amounts to non-filing of charge sheet - It is also relevant to be noted that petitioner is incarcerated from and now investigation is over and charge sheet has been filed in case - As already stated that in view of non-filing of charge sheet within time stip - Petitioner is having indefeasible right till charge sheet is filed - This right also exercised by petitioner within stipulated time as petitioner filed a petition for bail after expiry of days - Therefore this Court has no hesitation to release fee petitioner on statutory bail under Section 167(2) Cr.P.C - On condition to reside at Madurai and to report before Judicial Magistrate Madurai once in fifteen days till date of committal of case - Indefeasible right given u/s. 167(2) cannot be extinguished by imposing any onerous conditions - In this case even though petitioner was granted bail she was not able to come out on bail since she was not able to comply with condition directing her to make a cash deposit of lakhs - If very same condition of cash security is to be imposed on petitioner while considering Statutory Bail it will indirectly defeat indefeasible right of petitioner and will prevent petitioner from coming out on bail - Court below failed to appreciate this fundamental aspect while dismissing bail petition filed by petitioner - It is seen from records that petitioner is a permanent resident of Coimbatore and all properties belonging to petitioner and her family is in and around Coimbatore and this Court is convinced that petitioner cannot abscond if bail is granted by imposing reasonable conditions - Ordered Accordingly
ORDER :
N. Anand Venkatesh, J.
The petitioner, who was arrested and remanded to judicial custody on 02.11.2018, for an offence u/s. 120(B), 406, 420 IPC and Section 5 of TNPID Act, in Crime No. 3 of 2018, on the file of the respondent police, seeks bail.
2. The case of the prosecution is that the petitioner's husband named Jagadeeswaran was involved in construction business and was also running Finance Business in the name of various firms. He used to collect money from the general public by assuring that he will construct and hand over the houses. However, the accused persons failed to keep up the promise. By utilising the various amounts collected from the public, the accused persons purchased various movable and immovable properties in their names. There are totally 10 accused persons in this case and A1 to A6 are the various firms run by the accused persons, A7 is the husband of this petitioner, who had collected the deposits and purchased the movable and immovable properties and this petitioner is added as A10 on the ground that she was also involved in the entire transaction.
3. The accused person had collected from nearly 65 depositors, a sum of Rs. 2,71,90,350/-. The husband of the petitioner who was arrested, was initially granted bail and thereafter the bail was cancelled by an order dated 14.11.2018.
4. The petitioner was arrested on 02.11.2018, and she filed a bail petition before the Special Court and the Special Court, by an order dated 08.11.2018, granted bail to the petitioner by imposing certain conditions. One of the condition that was imposed was that the petitioner has to deposit an amount of Rs. 20 lakhs as cash security. This order came to be challenged before this Court in Crl. O.P. No. 26138 of 2018, and this Court dismissed the petition and refused to interfere with the condition imposed by the Court below. This order was further confirmed by the Hon'ble Supreme Court in SLP (Crl.) 00416/2019. As a result of same, in spite of the bail granted to the petitioner, the petitioner was not able to come out on bail due to non compliance of the condition imposed against the petitioner.
5. The petitioner has already suffered incarceration for more than 104 days. Since no Final Report was filed within the statutory period, the petitioner filed a bail petition seeking for Statutory Bail u/s. 167(2) of Cr.P.C in Cr. No. 3 of 2018. The said petition came to be dismissed by the Court below by an order dated 04.02.2019. Therefore, the present petition has been filed before this Court seeking for Bail.
6. There are two issues which has arisen for consideration before this Court in the present bail petition;
(i) Where bail has already been granted to the accused person by imposing certain conditions and in view of the non compliance of the condition, the accused was not able to come out of the jail and in the meantime, the investigation is not completed and Final Report is not filed within the statutory period, whether the petitioner can independently invoke the provisions of Section 167(2) of the Code of Criminal Procedure and seek for Statutory Bail?
(ii) Whether any condition for cash security can be imposed at the time of granting Statutory Bail to the extent that the accused person will not be able to comply with the condition and thereby, cannot come out on bail and which will indirectly deny the statutory right given to the accused person?
7. The learned counsel for the petitioner submitted that after the expiry of 60 days, in this case, an indefeasible right accrues in favour of the accused for being released on bail and the Court below will not even have the power to authorise detention beyond 60 days. The learned counsel also submitted that onerous condition cannot be imposed against the petitioner while considering the Statutory Bail, since it will defeat the very right itself, in view of the fact that the accused person cannot comply with that condition.
8. The learned counsel for the petitioner relied upon the follow
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