Back
SUPREME COURT OF INDIA
S. RAVINDRA BHAT, DIPANKAR DATTA, JJ.
Ramesh Kumar – Appellant
Versus
The State Of NCT Of Delhi – Respondent
Criminal Appeal No. 1741 of 2023 [Arising Out Of SLP(Crl.) No.2358 of 2023]
Decided on : 04-07-2023
(A) Criminal Procedure Code, 1973 – Section 438 – Indian Penal Code, 1860 – Section 420 – Pre-arrest bail (Anticipatory bail) – Grant of – Imposition of conditions – Conditions to be imposed must not be onerous or unreasonable or excessive – In context of grant of bail, all such conditions that would facilitate appearance of accused before investigating officer/court, unhindered completion of investigation/trial and safety of community assume relevance – However, inclusion of a condition for payment of money by applicant for bail tends to create an impression that bail could be secured by depositing money alleged to have been cheated – That is really not the purpose and intent of provisions for grant of bail – In exceptional cases such as where allegation of misappropriation of public money by accused is levelled and accused while seeking indulgence of court to have his liberty secured/restored volunteers to account for whole or any part of public money allegedly misappropriated by him, it would be open to concerned court to consider whether in larger public interest money misappropriated should be allowed to be deposited before application for anticipatory bail/bail is taken up for final consideration – Such approach would not be warranted in cases of private disputes where private parties complain of their money being involved in offence of cheating. (Para 26)
(B) Criminal Procedure Code, 1973 – Section 438 – Indian Penal Code, 1860 – Section 420 – Pre-arrest bail (Anticipatory bail) – Grant of – Imposition of conditions – High Court ought to have realized that having regard to nature of dispute between parties which is predominantly civil in nature, process of criminal law cannot be pressed into service for settling a civil dispute – Even if appellant had undertaken to make payment, such undertaking could not have weighed in mind of High Court to decide question of grant of anticipatory bail – Tests for grant of anticipatory bail are well delineated and stand recognized by passage of time – High Court fell in grave error in proceeding on the basis of undertaking of appellant and imposing payment of Rs.22,00,000/- as a condition precedent for grant of bail – Matter remitted to High Court for re-consideration of application for pre-arrest bail – Till such time further orders are passed by High Court, appellant’s liberty shall not be infringed by Investigating Officer. (Paras 27, 29, 30 and 31)
Facts of the case:
Allegedly, complainants failed to comply with terms and conditions of agreement dated 14th December, 2018 triggering institution of a civil suit by builder against complainants seeking cancellation of such agreement and forfeiture of amount of Rs. 13,00,000/-. Since complainants had effected payment of substantial amount of money to the appellant and the builder having failed to deliver possession of the second floor of the proposed building, complainants felt cheated and urged police to investigate the crime committed inter alia by appellant and builder.
Findings of Court:
It also does not appear from materials on record that complainants have instituted any civil suit for recovery of money allegedly paid by them to appellant. If at all offence alleged against appellant is proved resulting in his conviction, he would be bound to suffer penal consequence(s) but despite such conviction he may not be under any obligation to repay amount allegedly received from complainants. This too is an aspect which the High Court exercising jurisdiction under Section 438 of Cr. PC did not bear in mind.
Result : Appeal disposed of with observations.
Certainly. Based on the provided legal document, here are the key points:
The grant of anticipatory bail must be subject to conditions that are not onerous, unreasonable, or excessive. The conditions should facilitate the accused's appearance before authorities, support the investigation and trial, and ensure community safety. Imposing conditions such as payment of money should not imply that bail can be secured solely through deposit, especially in cases of private disputes involving cheating or civil matters (!) (!) .
When considering bail, courts should avoid using criminal proceedings as a means to settle civil disputes or recover money. Conditions that resemble civil recovery processes are inappropriate in bail applications and can be deemed excessive or unjustified (!) (!) (!) .
Conditions imposed for bail must be reasonable and directly related to the purpose of bail, such as ensuring cooperation with investigation and appearance in court. Imposing conditions that are harsh or unrelated, such as requiring payment of large sums of money, are not justified and can be challenged (!) (!) (!) .
The discretion to impose conditions under the relevant criminal procedure provisions must be exercised with restraint. Conditions should not be so onerous as to frustrate the purpose of bail or infringe on personal liberty. Conditions like depositing large sums of money or undertaking civil obligations are generally considered excessive unless justified by exceptional circumstances involving public interest or public money (!) (!) (!) (!) (!) .
Courts should carefully scrutinize whether the conditions imposed are proportionate and relevant to the case. Imposing conditions such as deposit of large sums or undertaking to pay amounts, especially in civil or private disputes, can be deemed an overreach and may warrant reconsideration (!) (!) (!) .
In cases involving civil disputes or allegations of cheating, the criminal process should not be used as a tool for recovery of money. The primary purpose of bail is to secure the appearance of the accused and facilitate investigation, not to resolve civil or monetary disputes (!) (!) .
When an accused volunteers to deposit money or undertake certain conditions, courts should verify the relevance and reasonableness of such conditions. Unilateral or excessive conditions imposed based on such undertakings may be considered unjustified and can be grounds for remitting the matter for re-evaluation (!) (!) (!) .
The legal framework emphasizes that the conditions for bail should be balanced, safeguarding personal liberty while ensuring effective investigation. Conditions that are excessive or unrelated to the case's facts are likely to be invalid and subject to judicial review (!) (!) (!) .
The courts should avoid interpreting the law as granting unlimited power to impose any condition they see fit; instead, conditions must be reasonable, relevant, and aimed at facilitating justice and investigation without infringing on constitutional rights (!) (!) .
Overall, conditions that resemble civil recovery mechanisms or impose disproportionate financial burdens are inappropriate in bail proceedings, especially in cases primarily involving civil disputes or allegations of cheating. The focus should remain on ensuring the accused's cooperation and appearance in court, not on recovering money through bail conditions (!) (!) (!) .
Please let me know if you need further assistance or a specific analysis.
JUDGMENT :
DIPANKAR DATTA, J.
Leave granted.
2. A disquieting trend emerging over the years which has gained pace in recent times necessitates this opinion. It has been found by us in multiple cases in the past several months that upon First Information Reports being lodged inter alia under section 420 of the Indian Penal Code, 1860 (“the IPC”, hereafter), judicial proceedings initiated by persons, accused of cheating, to obtain orders under Section 438 of the Code of Criminal Procedure, 1973 (“the Cr. PC”, hereafter) are unwittingly being transformed into processes for recovery of the quantum of money allegedly cheated and the courts driven to impose conditions for deposit/payment as pre-requisite for grant of pre-arrest bail. The present case is no different from the others and it is considered appropriate to remind the high courts and the sessions courts not to be unduly swayed by submissions advanced by counsel on behalf of the accused in the nature of undertakings to keep in deposit/repay any amount while seeking bail under section 438 of the Cr. PC. and incorporating a condition in that behalf for deposit/payment as a pre-requisite for grant of bail.
3. The bare facts relevant for a decision on this appeal, gathered from the impugned judgment of the Delhi High Court, are these. The appellant before us is the owner of an immovable property. With an intention to redevelop the same, he had entered into three agreements with one Ashwani Kumar (“the builder”, hereafter) dated 10th and 19th December, 2018 and 30th January, 2019. In terms of the agreement dated 19th December, 2018, the builder was required to construct a multi-storied building in which the appellant would have ownership rights in respect of the 3rd floor and the upper floor, apart from Rs.55,00,000/-(Rupees fifty-five lakh) to be paid to him by the builder, whereas the builder would have rights to deal with the 1st and the 2nd floors together with other rights as described therein. In pursuance of the aforesaid agreement, the builder entered into an agreement to sell and purchase/bayana dated 14th December, 2018 with Vinay Kumar and Sandeep Kumar (“the complainants”, hereafter) in respect of the 2nd floor of the proposed building (without roof rights) but other rights as described therein for a sum of Rs. 60,00,000/-(Rupees sixty lakh). The complainants had allegedly paid to the builder Rs. 11,00,000/-(Rupees eleven lakh) [Rs. 1,00,000/-(Rupees one lakh) as token money and Rs. 10,00,000/-(Rupees ten lakh) as earnest money], at the time of execution of the agreement dated 14th December, 2018. Thereafter, on the instructions of the builder, the complainants on different dates allegedly made payments of additional amounts to the appellant as well as the builder, in cash as well as by cheques, totaling to Rs. 35,00,000/-(Rupees thirty-five lakh).
4. Allegedly, the complainants failed to comply with the terms and conditions of the agreement dated 14th December, 2018 triggering institution of a civil suit by the builder against the complainants seeking cancellation of such agreement and forfeiture of the amount of Rs. 13,00,000/-(Rupees thirteen lakh). This was purportedly upon invocation of clause 8 of the said agreement. It is also a matter of record that the builder has instituted another civil suit inter alia against the appellant for specific performance of the agreements dated 10th and 19th December, 2018. However, from the materials on record, we have failed to ascertain the dates of institution of the civil suits.
5. The complainants were not handed over possession of the second floor which they intended to purchase. As late as on 18th November, 2021, the complainants sought to put the investigative machinery in motion by lodging a complaint with the Station House Officer, Police Station Gulabi Bagh, Delhi. The said complaint was registered as FIR No.322 of 2021 under sections 420/406/34 of the IPC. Therein, the appellant, the builder and a broker were shown as acc
Grant of Pre-arrest bail (Anticipatory bail) – Conditions to be imposed must not be onerous or unreasonable or excessive – Tests for grant of anticipatory bail are well delineated and stand recognize....
The main legal point established in the judgment is that the conditions imposed for granting anticipatory bail under the Prevention of Money Laundering Act should be just, efficacious, and not excess....
conditions for grant of bail ought not to be so strict as to be incapable of compliance, thereby making a grant of bail illusory. The conditions while granting bail should be reasonable, so that it m....
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.
Imposing a financial deposit as a condition for bail is impermissible and criminal proceedings cannot be converted into recovery proceedings.
Point of Law : Bail - Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre arrest bail should be granted only in exceptional cas....
The main legal point established is the discretion of the court in granting bail and the imposition of stringent conditions to ensure the accused's compliance.
Bail should not be granted or conditioned on financial undertakings; it must be assessed strictly on its merits according to law.
The discretion for granting anticipatory bail should be exercised with care and circumspection, and the nature and gravity of the accusation, the antecedents of the applicant, and the possibility of ....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
