Delhi High Court
Dinesh Ahluwalia, Smt. Rajinder ... vs State on 15 July, 2002
Equivalent citations: 2003CRILJ980, 99(2002)DLT387, I(2003)DMC4, 2002(64)DRJ427
JUDGMENT V.S. Aggarwal, J.
1. The petitioners assail the order of the learned Additional Sessions Judge, Delhi by virtue of which the learned court passed an order admitting the petitioners to anticipatory bail but subject to the condition that they shall deposit Rs.2.5 lakhs as fixed deposit receipt on Indian Bank, Connaught Place, New Delhi in the name of the court in two Installments of Rs.1.25 lakhs each. The deposit had to be made without prejudice to the rights of the parties and respondent-wife of Dinesh Ahluwalia, would only be entitled to the amount, if any, after adjudication of her claim.
2. Some of the relevant facts are that Dinesh Ahluwalia was married to respondent Ms. Roopa Ahluwalia. The marriage was solemnised some time in February1992 at Calcutta. Petitioner no.2 is the mother-in-law of Roopa Ahluwalia and petitionerno.3 is the father-in-law of the complainant Roopa Ahluwalia. Both the petitioner no.1 and his wife/respondent (Roopa Ahluwalia) are working in Indian Airlines. Petitioner no.1 is a pilot and the complainant is an Air Hostess in the said airlines.
3. Respondent Roopa Ahluwalia had filed a complaint on basis of which the first information report had been recorded at Police Station Vasant Kunjwith respect to offences punishable under Section 406, 498A Indian Penal Code. Petitioners apprehending arrest submitted the application seeking anticipatory bail with the court of Sessions. It is in pursuance of the said application that the above said impugned order had been passed.
4. On behalf of the petitioners it was firstly asserted that while passing an order for anticipatory bail, a condition like the one imposed by the learned Sessions Judge could not have been imposed. Secondly in any case on the facts such a condition would not be valid.
5. Taking up the first argument it must be stated that provisions of Section 438 of the Code of Civil Procedure comes into play when any person has reason to believe that he may be arrested on an accusation of having committed a non-bail able offence. Sub-section (2) to Section 438 permits the court of Sessions or High Court to impose certain conditions as may be appropriate in the facts and circumstances of the case. It reads as under:-
(2) When the High Court or the Court of Session makes a direction under sub-section (1) it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
6. The above said provision would reveal that the court can impose conditions as maybe imposed under sub-section (3) to Section 437 as if the bail were granted under that section. Needless to state that under sub-section (3) to Section 437 the court can impose certain conditions while granting bail with respect to specified offences contemplated under Chapter VI, XVI, XVII of the Indian Penal Code or abet mentor conspiracy or attempt to commit any such offence. But as is apparent from the plain language of sub-section 2(iv) of Section 438 while imposing conditions under Section 438 of the Code of Criminal Procedure it is not to be confined to those provisions under sub-section (3) to Section 437. A legal fiction is created when the legislature used the word "as if the bail were granted under that section". Therefore, the court could impose such condition in any case in which anticipatory bail is prayed. A similar view had been expressed by this court in Sunil Sharma& Ors. Vs. State 1993 Criminal Law Journal 3628. Consequently the first argument in this regard must fail.
7. As regards the second argument raised at the bar, as referred to above, the grievance is that in the present case there was no occasion to pass order directing the petitioners to deposit Rs. 2.5 lakhs before the concession for anticipatory bail could come into play.
8. To appreciate the said controversy reference can well be made to the copy of the first information report that has been appended. The sum and substance of the same is that respondent/complainant was alleged to have been harassed. But there is precious little on the record in the complaint so as to indicate that any of the dowry articles or any other articles have been misappropriated by the petitioners.
9. Learned counsel for the complainant/respondent stated that this was a consent order that had been passed. It had been disputed by the learned counsel for the petitioners learned counsel. But one need not dwell further into this controversy because perusal of the impugned order reveals that it is not recorded to be a consent order. There is no ground to deviate from the plain language of the said order.
10. In that event learned counsel for the complainant/respondent had drawn the attention of this court towards the supplementary statement recorded in which it was asserted that specific allegations have been made with respect to the offence punishable under Section 406 of the Indian Penal Code. However, it transpires that the said statement had been recorded during the tendency of the present revision petition and very much after the first information report had been lodged. For purposes of the present order much importance cannot be given to the said supplementary statement. In that view of the same it flows automatically that it can safely be stated that there was very little on the record with respect to the offence punishable under Section 406 Indian Penal Code. Once it is so there was no occasion for imposing a condition directing the petitioners to deposit Rs.2.5 lakhs in fixed deposit and therefore in the facts of the present case to that effect the order of the learned Additional Sessions Judge cannot be sustained.
11. For these reasons the revision petition succeeds and the order passed by the learned Additional Sessions Judge is modified. It is directed that condition whereby petitioners were directed to deposit Rs.2.5 lakhs as a condition for anticipatory bail must be taken to be improper instead it is directed that in the event of arrest petitioners be enlarged on bail on each executing a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the Investigation Officer/Arresting Officer. Petitioners shall join investigation as and when required.