Calcutta High Court (Appellete Side)
Santosh Giri vs The State Of West Bengal on 23 April, 2014
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL/APPELLATE JURISDCITION
APPELLATE SIDE
Present: The Hon'ble Justice Ashim Kumar Roy
C.R.R 2769 of 2013
With
C.R.R. 2770 of 2013
Santosh Giri
-vs-
The State of West Bengal
For the Petitioner in : Mr. Subir Banerjee,
( both the matters) Mr. Jayanta Banerjee,
Mr. Sandip Bandopadhyay,
Mrs. R. Basu Roy,
Md. Ziaur Rahaman,
For the State in
(both the matters) : Mr. Amarta Ghosh
Heard on : 21.03.2014
Judgement : 23.4.2014
Ashim Kumar Roy, J.
Since in both these criminal revisions, an identical question of law fell for consideration, same are taken up for hearing together and are disposed of by this common order.
The core issue arises for adjudication in this matter is - while granting bail, a court granting bail is empowered to impose any condition, other than those enumerated in relevant provisions contained in Chapter-XXXIII of the Code of Criminal Procedure, relating to the provisions as to bail and bail bonds.
The petitioner was arrested in connection with two cases, namely, Hare Street Police Station Case No. 233/13 under Sections 406/420/419/120B of the Indian Penal Code and Hare Street Police Station Case No. 377/13 under Sections 420/406/506(ii)/120B of the Indian Penal Code. This petitioner was arrested on 8th June, 2013 and after his detention in custody for about 27 days on 4th July 2013, he was released on interim bail by the learned Chief Metropolitan Magistrate, Calcutta. In both the cases, the interim bail was granted on condition of furnishing a bond of Rs.3000/- with one surety of like amount and he shall meet the Investigating Officer of the case at least twice in a week for a period of four weeks. A further condition was imposed that in the meantime, that is, by the returnable date, the petitioner shall repay the alleged cheated money.
In the case in hand, it is the only grievances of the revisionist that order of bail cannot be subject to condition of repayment of alleged cheated amount and imposition of such condition is beyond the authority of the court. I think it would be sufficient to reach to a conclusion in the matter, if the decision of the Apex Court in the case of Shyam Singh -vs- C.B.I (2006) 2 SCC (Cr) 613 be referred. In the said case amongst other, the Apex Court held, " it is of course open to a Court to grant or refuse bail, but to assume that an offence has been committed even at the stage of granting bail and to direct repayment of any amount is both onerous and unwarranted, when the liability of the accused was yet to be determined in an appropriate proceeding".
This is a case where bail was granted by a learned Magistrate in exercise of its power under Section 437 of the Criminal Procedure Code and it goes without saying that the learned Magistrate is legally empowered to impose any of the conditions enumerated in Sub-Section (3) of Section 437 of the Criminal Procedure Code, which are as follows :-
"3. When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under Sub- Section(1) [ the court shall impose the conditions,-
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such 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 or tamper with the evidence.
and may also impose, in the interests of justice, such other conditions as it considers necessary]"
At the same time, the court may also impose such condition, as is considered necessary in the interest of justice. But in no way court can impose a condition for repayment of the alleged cheated amount holding that the allegations are true and offence has been committed before the regular trial.
Neither the court can act as a recovery agent nor can direct an accused to return the money before his liability is determined. Moreover, the Code of Criminal Procedure does not empower a court to make such an order and can at best be passed by a civil court.
In the case of Sheikh Ayub -vs- State of M.P. reported in (2004) 13 SCC 457, the Apex Court held that " a direction to pay a portion of the amount misappropriated by the accused to the complainant as a condition for bail is unwarranted."
Similarly, in the case of M. Sree Nivasula Reddy -vs- State of Tamil Nadu reported in (2002) 10 SCC (Cri) 653, the Apex Court held that "while considering the question of bail, the court is certainly not going to recover the alleged cheated amount as a condition of bail". Similar is the view taken by the Apex Court in the case of Sohan Lal Juneja -vs- State of Punjab reported in 2007(2) SCC (Cri) Page- 90. In a recent decision of Sumit Mehta -vs- State of N.C.T. of Delhi reported (2014) 1 C. Cr. LR (SC) 207, where the accused was granted bail in connection with a case relating to the offences punishable under Sections 420/467/468/470 of the Indian Penal Code on condition to deposit amount of Rs. 1 crore in fixed deposit in the name of complainant and to keep the FDR with the Investigating Officer. The Apex Court set aside the condition of making deposit the said amount in the FDR as directed by the High Court and directed the accused to fulfil the following conditions:
" Para- 17. In the light of the above discussion, while retaining the order granting anticipatory bail in favour of the appellant-accused, namely, Sumit Mehta, we set aside the direction relating to deposit of FDR in the name of the complainant. However, the appellant-accused has to fulfill the following conditions:
(i) The appellant shall make himself available for interrogation by a police officer as and when required;
(ii) The appellant 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) The appellant shall furnish his address to the Investigating Officer who shall verify it and submit it to the trial Court under his signature. In case of change of address, it must be communicated to the Investigating Officer who shall verify it and intimate the same to the Court concerned under his signature; and
(iv) The appellant shall not leave India without the previous permission of the trial Court."
Therefore, the decisions referred hereinabove clearly goes to show that it is the uniform authoritative view of the Apex Court imposition of such a condition while granting bail to an accused is erroneous, illegal and without jurisdiction. Although making of such order has attracted wrath of the Apex Court in number of occasions still such orders are passed by the lower judiciary one after another.
Accordingly, the condition of repayment of the money is quashed. The petitioner shall remain on interim bail for a further period of fifteen days and in the meantime, if he surrenders in court, the court below is directed to consider his prayer for bail in accordance with law and considering the Case Diary and keeping in view that the petitioner after his detention of nearly 27 days was released on bail and he has been enjoying his such liberty since July 2013 and no complaint is forthcoming from any quarter that during such period he has misused his liberty and the further fact of investigation is over and charge-sheet has been submitted.
Since, I find the lower judiciary are regularly passing this kind of orders in disobedience of the decision of the Hon'ble Apex Court so that to avoid any future adverse consequences, the learned Registrar General of this Court is directed to communicate this order to all the judicial officers dealing with the matters of bail through the respective District Judges. The learned Registrar General is directed to obtain compliance report before this Court within four weeks from this date.
Criminal Section is directed to deliver urgent photostat certified copy of this order to the learned advocate of the petitioner, if applied for, as early as possible.
( Ashim Kumar Roy, J. )