Madras High Court
Sathya Moorthy vs The State Rep By on 24 March, 2023
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.O.P.No.6675 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.03.2023
CORAM:
THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.6675 of 2023
Sathya Moorthy ... Petitioner
Vs.
The State rep by
The Inspector of Police,
E-5, Sholavaram Police Station,
Sholavaram, Chennai – 67.
Crime No.194 of 2023. ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to modify the condition imposed by the learned
Principal District and Sessions Judge at Thiruvallur in Crl.MP.No.1030 of
2023 order dated 17.03.2023 to deposit a sum of Rs.4,00,000/- before the
learned Judicial Magistrate No.II Ponneri to the credit of Crime No.194 of
2023 of Sholavaram Police Station.
For Petitioner : Mr.M.Vimal Bobby Crimson
For Respondent : Mr.N.S.Suganthan
Government Advocate (crl.side)
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Crl.O.P.No.6675 of 2023
ORDER
This Criminal Original Petition is filed to modify the condition imposed by the learned Principal District and Sessions Judge at Thiruvallur in Crl.MP.No.1030 of 2023 order dated 17.03.2023 to deposit a sum of Rs.4,00,000/- before the learned Judicial Magistrate No.II Ponneri to the credit of Crime No.194 of 2023 of Sholavaram Police Station.
2.The learned counsel for the petitioner would submit that the petitioner was earlier arrested by the respondent police on 08.03.2023 in respect of the case registered in Crime No.194 of 2023 for the offences under Sections 353, 506(I) and 328 of IPC and Section 24(1) of Cigarette and other Tobacco Products Act, 2003. The petitioner was remanded to Judicial Custody on the same day and thereafter, the petitioner had moved an application before the learned Principal District and Sessions Judge, Thiruvallur under Sections 439 of Cr.P.C. seeking bail and the learned Judge, while granting bail to the petitioner, imposed certain conditions and one of the condition was that the petitioner has to deposit a sum of Rs.4,00,000/- before the learned Judicial Magistrate No.II, Ponneri to the credit of Crime No.194 of 2023. He would further submit that the petitioner 2/4 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6675 of 2023 is poor man and the petty shop which was running by the petitioner belongs to the first accused A1/Murugan who is absconding and the condition directing the petitioner to deposit a sum of Rs.4,00,000/- is excessive and onerous. Despite the bail order granted on 17.03.2023, the petitioner is unable to comply with the conditions and he is suffering incarceration and thereby, the present petition has been filed seeks to modify the said condition. He would further submit that the Hon'ble Apex Court in several cases have stated that onerous condition directing the accused to pay a huge amounts, cannot be imposed while granting bail and thereby he would seek for setting aside the condition. However, he would also submit that without prejudice to his rights and defence, the petitioner is ready and willing to deposit a sum of Rs.50,000/- to the credit of Crime No.194 of 2023.
3. The learned Government Advocate (Crl.Side) on instructions would submit that the petitioner along with A1/Murugan were running a petty shop in which, the respondent police found 40 bags of tobacco products and the same was also recovered.
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4. Heard both sides and perused the materials available on record.
5. Admittedly, this Court as well as the Hon'ble Apex Court have held that onerous conditions cannot be imposed as a precondition for grant of bail. In the case of Guddan @ Roop Narayan Vs. State of Rajasthan reported in 2023 Live Law (SC) 45, the Hon'ble Apex Court has held that the excessive conditions imposed on the appellant, in practical manifestation, acted as a refusal to grant bail and the Apex Court has also deprecated the practice of imposing onerous conditions at the time of grant of bail. The relevant paragraphs are extracted hereunder:-
“...9.This Court, time and time again has held that jail is the exception and grant of bail is the rule, and in such a scenario, the conditions imposed on bail must not be unreasonable.
10. In the case of Munish Bhasin and Others Vs. State (Government of NCT of Delhi) and Another (2009) 4 SCC 45, the Appellant had approached the Supreme Court in Appeal against an order of the High Court that had imposed onerous conditions for grant of Anticipatory Bail in a Domestic Violence case. This Hon’ble Court in its reasoning held that harsh and excessive conditions cannot be imposed while granting bail, the relevant observations of this Court are reproduced hereunder:
“10.It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. There 4/4 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6675 of 2023 is no manner of doubt that the court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all.
12. While imposing conditions on an accused who approaches the court under Section 438 of the Code, the court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all.
There is no manner of doubt that the conditions to be imposed under Section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under Section 438 of the Code.”
11. In the case of Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, this court held that the object of bail is neither punitive nor preventative. It was observed as under:
“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of 5/4 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6675 of 2023 former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions;
since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.
27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.”
12. Further, in the case of Sandeep Jain Vs. National Capital Territory of Delhi (2000) 2 SCC 66, this Court, while hearing a bail application held that conditions for grant of bail cannot become so onerous that their existence itself is tantamount to refusal of bail. This Court held as under:
“We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is 6/4 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6675 of 2023 sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs 2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is chargesheeted by the police.”
13. In the present case, the Appellant has been granted bail by the High Court. However, while granting bail, the High Court has imposed the excessive conditions of a deposit of fine amount of Rs.1,00,000/- along with a surety of another Rs.1,00,000/- and two further bail bonds of Rs.50,000/- each.
14. We are unable to appreciate the excessive conditions of bail imposed by the High Court. The fact that bail has been granted to the Appellant herein is proof enough to show that he is not to be languishing in jail during the pendency of the case.
15. While bail has been granted to the Appellant, the excessive conditions imposed have, in-fact, in practical manifestation, acted as a refusal to the grant of bail. If the Appellant had paid the required amount, it would have been a different matter. However, the fact that the Appellant was not able to pay the amount, and in default thereof is still languishing in jail, is sufficient indication that he was not able to make up the amount.
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16. As has been stated in the Sandeep Jain case (supra), the conditions of bail cannot be so onerous that their existence itself tantamounts to refusal of bail. In the present case, however, the excessive conditions herein have precisely become that, an antithesis to the grant of bail.
17. Any other accused in a similar circumstance at this point would not be in custody, however, the present Appellant, because of the conditions imposed, has not been able to leave the languish of jail. Can the Appellant, for not being able to comply with the excessive requirements, be detained in custody endlessly? To keep the Appellant in jail, that too in a case where he normally would have been granted bail for the alleged offences, is not just a symptom of injustice, but injustice itself.”
6. Considering the submissions made by either side and that the petitioner has come forward to deposit a sum of Rs.50,000/- to the credit of Crime No.194 of 2023, the said condition imposed on the petitioner by the learned Principal District & Sessions Judge, Thiruvallur in Crl.M.P.No.1030 of 2023 dated 17.03.2023 is modified to the effect that the petitioner shall deposit a sum of Rs.50,000/- (Rupees Fifty Thousand only) to the credit of Crime No.194 of 2023 before the learned Judicial Magistrate No.II Ponneri.
The other conditions imposed by the learned Principal District and Sessions Judge, Thiruvallur shall stand unaltered.
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7. Accordingly, this Criminal Original Petition is ordered.
24.03.2023 Index:Yes/No Internet: Yes/No jas Note: Issue Order Copy on 24.03.2023 To
1.The Principal District and Sessions Judge, Thiruvallur.
2.The Judicial Magistrate No.II Ponneri.
3.The Inspector of Police, E-5, Sholavaram Police Station, Sholavaram, Chennai – 67.
Crime No.194 of 2023.
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