Delhi High Court
Sushil Suri vs State And Anr. on 3 May, 2006
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. 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 20.04.2006 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 lakhs 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 CrPC. The second point urged by the learned counsel for the petitioner is that the quantum of personal bond and surety of Rs. 2 lakhs 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 (N.C.T. of Delhi) 2000 (1) JCC Delhi 2006. 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 1984 (2) Crimes 413 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 49 Cr.L.J. 1948. 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 Ors. v. Public Prosecutor--for the Crown: AIR 1942 Madras 740. 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.
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 willing to execute bonds for his appearance. It was observed that if the Magistrate imposes an extraneous condition, such as the Magistrate had done in that case, then it would mean that if the conditions were not fulfillled, he would have to refuse bail and that was not permissible under Section 496 of the Criminal Procedure Code, 1898. Accordingly, the Madras High Court held that the imposition of a condition of this kind in a bail order leads to the infringement of the provisions of Section 496, CrPC, in case the condition is not fulfillled. The order of the Magistrate was modified by deleting the condition that the accused should not enter the disputed land till the disposal of the case.
4. Another case referred to by the learned counsel for the petitioner was that of In Re Saradamma and Ors. . The learned counsel for the petitioner relied on paragraph 9 of the said decision which in essence merely sets out as to what was decided in an earlier case in the case of Public Prosecutor v. Raghuramaiah 1957 (2) Andh WR 383. In that case, i.e., the case of Public Prosecutor (supra), it was observed that Section 496, CrPC, 1898 envisaged an accused person being released on bail when the charge against him is in regard to a bailable offence. It was further observed that the words used are such person shall be released on bail thereby denoting that it is mandatory on the Magistrate to admit him in that behalf. The Magistrate would have no discretion to impose any conditions, the only discretion that is left in him being only as to the amount of the bond or whether the bail could be on his bond or with sureties. It was further observed in the case of Public Prosecutor (supra) that any condition subject to which the bail should operate infringes the provisions of Section 496 and that bail under this provision should be an unconditional one. Of course, this case was cited in the case of In Re Saradamma and others (supra) to distinguish the case of bailable and non- bailable offences. It was observed in the latter case that while no condition could be imposed in respect of bailable offences, there was established line of authority that in the case of non-bailable offences, a court may impose conditions other than the fixing of the bail for the attendance of the accused and that such a condition would not be illegal. The learned counsel for the petitioner also referred to the decision in the case of Puneet Singh Chauhan and Anr. v. State and Anr. . He placed reliance on paragraph 9 of the said decision to indicate that this court had also issued general directions for compliance by all Metropolitan Magistrates and the courts of Sessions on the question of granting bail in the case of bailable offences. The direction issued by this court in that case was as under:-
In a bailable offence, the courts of Metropolitan Magistrates and Sessions Judges issuing the process of warrant of arrest under Section 89 Cr.P.C. for procuring the appearance of the accused shall either on appearance by the accused on his own or on his production by the police in execution of warrants of arrest shall release the accused on his furnishing bond with or without sureties.
This latter decision, in my view, is not relevant to the question at hand.
5. Mr. Mahajan, on the other hand, appearing on behalf of the complainant, submitted that conditions could be imposed even for offences under Section 436, CrPC. However, these conditions would have to relate only to ensuring the attendance of the accused. Any conditions which went beyond this object, would not be permissible under the said section. In support of this contention, he firstly placed reliance on a decision of the Supreme Court in the case of Talab Haji Hussain v. Madhukar Purshottam Mondkar and Anr. 1958 SCR 1226. In particular, he placed reliance on the passage at page 1230 of the said report wherein it is indicated that there is no doubt that under Section 496, a person accused of a bailable offence, is entitled to be released on bail pending his trial. It is further noted in the said decision that as soon as it appears that the accused person is prepared to give a bail, the police officer or the court, before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on executing his bond as provided in the section instead of taking bail from him. Mr Mahajan places great reliance on the expression on such terms as to bail as may appear to the officer or the court to be reasonable. According to him, this expression would take within its sweep the imposition of a condition such as the one imposed by the learned Metropolitan Magistrate in the present case requiring the petitioner to seek permission of the court before he ventured abroad. In this context, he also referred to Sub-Section 2 of Section 436 which provides that notwithstanding anything contained in Sub-Section (1), where the person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under Section 446. It is, therefore, his contention that Sub-Section 2 of Section 436 indicates that conditions other than the requirement of furnishing surety can also be imposed while bail is granted under Section 436(1). In my view, this interpretation would widen the scope of discretion that is available to the court while granting bail under Section 436. A reading of Section 436(1) of the CrPC would clearly indicate that, in the first instance, a person charged of a bailable offence is entitled to bail as a matter of right. The proviso to this Sub-Section prescribes the entire area of discretion left with the court. The area of discretion being that the court may release the person merely on the person executing a bond without surety for his appearance instead of taking bail from such a person when such a person is indigent and is unable to furnish surety. So, according to me, the only discretion left with the court while granting bail under Section 436(1) is with regard to whether the person is required to furnish a personal bond with or without surety. The court will insist on sureties if the person is not indigent. However, if the person is able to make out a case that he is an indigent and is unable to furnish a surety, then the court may release him on his executing a bond without sureties. This is the only limited extent that is left with the court while dealing with the case under Section 436(1) of the Code of Criminal Procedure. This, to my mind, is the only reasonable and rational interpretation that can be put to this section and it is in this context that the Supreme Court in the case of Talab Haji Hussain (supra) has used the words is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. The discretion is with regard to the terms of bail and not with regard to the imposition of any other condition. Therefore, according to me, the decision of the Supreme Court in the case of Talab Haji Hussain (supra) does not support the contention raised by Mr Mahajan.
6. Mr Mahajan then referred to the decision in the case of Ajit Srimal v. The State and Anr. . In that case, a petition under Section 482 of the CrPC had been filed against the orders passed by the trial court directing the petitioner not to leave the country without prior permission of the court and thereafter, allowed his application for going abroad subject to furnishing a bank guarantee in the sum of Rs. 2 lakhs. In that case also, the petitioner therein was facing trial before the learned Metropolitan Magistrate under Section 138 of the Negotiable Instruments Act, 1881 as is the case here. Considering the fact that the petitioner was involved only in a bailable offence, a learned single Judge of this court in the said decision [Ajit Srimal (supra)] held that the imposition of the impugned condition against the petitioner leaving the country without the permission of the court and the condition of permitting him to leave subject to furnishing a bank guarantee of Rs. 2 lakhs were too harsh and onerous and could not be sustained. However, while setting aside these conditions, the court directed that the petitioner therein was permitted to leave the country as and when required subject to the condition that before his departure, he shall inform the court in writing regarding the date of departure, date of return and the address at the country he proposes to visit and further subject to get an exemption of appearance before the court in case the matter was fixed on a date on which he was not in the country. The said decision, to my mind, also does not support the contention of Mr Mahajan that conditions can be imposed while granting bail under Section 436(1) in relation to the attendance of the accused. This is so because the condition, which required the petitioner in that case to take permission of the court prior to embarking on a foreign journey, was set aside. The condition of permitting him to leave the country subject to furnishing a bank guarantee of Rs. 2 lakhs was also set aside and it was only directed that the petitioner would inform the court in writing regarding the date of his departure and date of his return as also the address at the country he proposes to visit. Although this is styled as a condition, it is actually not a condition and is merely a direction for the accused to give the requisite information as bail is not conditional upon this direction and, therefore, strictly speaking, this cannot be regarded as a condition for bail and, therefore, would be in line with the authority of settled principles that while granting bail under Section 436(1), the court cannot impose any conditions.
7. Considering all these submissions and decisions referred to above, I feel that the correct view with regard to grant of bail in a bailable offence has been taken by the Madras High Court in the case of In re Kota Appalakonda and others (supra) and has been succinctly put as follows:- The question that arises in this petition is whether this condition is one permissible by law. With regard to non-bailable offences, I can see no objection to imposing conditions of this kind; for the Magistrate has an option to grant bail or to refuse bail and he has also the power under S. 497(5), Criminal P.C., of causing persons so released to be arrested and committed to custody, which sub-section he would apply in case the condition was not fulfillled. But all the offences with which the petitioners were charged are bailable offences, with regard to which a Magistrate has no discretion. He must release the accused on bail provided that he is willing to execute bonds for his appearance. If he imposes an extraneous condition such as the Sub-Divisional Magistrate has in this case done, then it would mean that if the condition were not fulfillled he would have to refuse bail; and that he is not permitted to do under S. 496, Criminal P.C., if bonds are furnished for the accused's appearance. So the imposing of a condition of this kind in a bail order leads to the infringement of the provisions of S.496, Criminal P.C., in case the condition was not fulfillled. As the order of the Magistrate is not one authorised by law, it is modified by deleting the condition that the accused should not enter the disputed land till the disposal of the case.
8. I think that the decision quoted by Mr Mahajan in the case of Ajit Srimal (supra) is also in line with the above cases that no condition can be imposed inasmuch as what has been directed by this court is not by way of a condition of a bail, but a mere direction for supply of information and, therefore, if such a direction is given, it would not amount to being a condition for grant of bail. Such information is merely to assist the administration of justice. Therefore, I do not find it difficult to pass such a direction in this case also that the petitioner shall inform the court in writing before he embarks on any foreign visit giving the date of departure and his tentative date of return as also broadly indicating the places of his stay abroad. Of course, if the petitioner does not appear on the date and time fixed by the court, then the provisions of Section 436(2), CrPC would come into play. Therefore, the condition of requiring the petitioner to take permission of the court prior to going abroad is set aside and is replaced by the aforesaid direction of providing the information which, I reiterate, is not a condition of bail.
9. The other contention of the learned counsel for the petitioner was that the surety amount of Rs. 2 lakhs is very harsh, onerous and burdensome and, therefore, the same should be reduced. The learned counsel for the complainant has submitted that the cheques in this case amounted to roughly around Rs. 2 crores. So, it is not a case where one would be dealing with a person who does not have the means and only a surety amount of Rs. 2 lakhs has been asked for by the learned Metropolitan Magistrate while granting bail. It is within the discretion of the Metropolitan Magistrate to impose a reasonable condition as to surety and, to my mind, the condition requiring one surety of Rs. 2 lakhs is not unreasonable. To that extent, the order passed by the learned Metropolitan Magistrate and impugned herein cannot be faulted.
10. Accordingly, this petition is disposed of with the direction that the condition with regard to the petitioner's seeking permission of the court prior to his going abroad is set aside. The condition requiring the petitioner to submit a personal bond in the sum of Rs. 2 lakhs with one surety of the like amount is sustained. A further direction, in the light of the directions given in the case of Ajit Srimal (supra), requiring the petitioner to inform the court in writing regarding his date of departure and tentative date of his return and broadly indicating the places where he would be staying abroad, is also passed. With these directions, this petition stands disposed of. dusty to both the parties.