Madras High Court
Mohammed Sheriff vs The State Represented By on 25 April, 2023
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.O.P.No.8715 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.04.2023
CORAM:
THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.8715 of 2023
Mohammed Sheriff ... Petitioner
Vs.
The State represented by,
The Inspector of Police,
HQRS Police Station,
Economic Offence Wing,
Chennai.
Crime.No.21 of 2022 ... Respondent
PRAYER: Criminal Original Petition filed under Section 439(1)(b) of the
Code of Criminal Procedure, to modify the condition “8. After release on
bail the petitioner/accused is directed to deposit a sum of Rs.1 Crore or shall
deposit original title deeds for the value of Rs.1 crores along with valuation
certificate obtained from the authority concerned within the period of 30
days from the date of his release” by an order dated 10.01.2023 in
Crl.MP.No.1402 of 2023.
For Petitioner : Mr.R.Vivekananthan
For Respondent : Mr.N.S.Suganthan
Government Advocate (crl.side)
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Crl.O.P.No.8715 of 2023
ORDER
This Criminal Original Petition has been filed to modify the condition imposed on the petitioner in the bail order dated 10.04.2023 passed by the Special Judge under Tamil Nadu Protection of Interests of Depositors (in Financial Establishment) Act, 1997 at Chennai in Crl.MP.No.1402 of 2023 in Crime No.21 of 2022 pending investigation on the file of the respondent.
2. The petitioner is facing a case in Crime No.21 of 2022 on the file of the respondent police for the offence punishable under Sections 120(B), 409, 420 of IPC read with Section 34 of IPC, Section 5 of TNPID Act, Section 21(3), 22, 23, 24, 25 of Banking of unregulated Deposit Schemes Act, 2019. It appears that he was arrested on 10.01.2023 and since no charge sheet was filed by the respondent even after completion of 90 days, he moved for statutory bail. The court below, while granting the statutory bail, apart from imposing several other conditions, imposed a condition to deposit a sum of Rs.1 Crore or to deposit original title deed for the value of Rs.1 Crore along with valuation certificate obtained from the authority concerned within a period of 30 days from the date of his release, which has been challenged by the petitioner in the present Criminal Original Petition. 2/4 https://www.mhc.tn.gov.in/judis Crl.O.P.No.8715 of 2023
3. Learned counsel appearing for the petitioner would submit that the condition to deposit such a huge sum or title deed to that value is an untenable and onerous one. He would further submit that the petitioner was released on bail on 10.04.2023 and since then, he had been complying with all other conditions. He would also submit that the co-accused by name G.Manikandan @ Guru Manikandan, had filed a bail petition before this Court and the same was allowed with a condition to deposit a sum of Rs.One Crore. He further submits that the co-accused filed a modification petition in Crl.OP.No.6676 of 2023 and the same was allowed by this Court on 10.04.2023 and the condition imposed on the co-accused to deposit Rs.One Crore has been removed relying on the decision by a Full Bench of the Apex Court in Saravanan Vs. State represented by the Inspector of Police (2020) 9 SCC 101. He further submit that the condition imposed by the learned Trial Judge while releasing the petitioner on statutory bail/default bail under Section 167(2) of Cr.P.C is contrary to the scheme of Section 167 Cr.P.C. He would also submit that the Apex Court and this Court have time and again observed that the scheme of Code of Criminal Procedure delineates that provisions of Section 167 Cr.P.C., give due regard to the personal liberty of a person and when the charge sheet has not been 3/4 https://www.mhc.tn.gov.in/judis Crl.O.P.No.8715 of 2023 submitted within 60 days or 90 days, an accused cannot be detained by the police and the right in which accused becomes entitled to default bail and it cannot be frustrated either by the prosecution or the Court.
4. The learned counsel for the petitioner would further submit that when a court feels that a prima facie has been made out for the purpose of granting bail, by no stretch of imagination, any onerous condition be passed, thereby thwarting and making the order inexecutable as it amounts to denial of bail. In support of his contention, the learned counsel for the petitioner has relied on the very same decision in Saravanan Vs. State represented by the Inspector of Police (2020) 9 SCC 101.
5. Learned Government Advocate (Criminal Side), opposing for grant of bail, would submit that the offence involved is having high stake and thus, the learned Trial Judge has rightly imposed the condition on the petitioner and thereby the petitioner is not entitled for any indulgence and the present petition is liable to be dismissed.
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6. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
7. Admittedly, the bail granted to the petitioner is a default bail as he had been in judicial custody for more than the statutory period of 90 days and charge sheet has not been filed by the respondent police, however, the court below has imposed such a onerous condition frustrating the purpose of granting the bail. On this aspect, as rightly pointed out by the learned counsel for the petitioner, the Apex Court in number of decisions, has held that imposition of onerous condition while granting default bail is nothing but denial of bail.
8. In Saravanan Vs. State represented by the Inspector of Police (2020) 9 SCC 101, a Full Bench of the Apex Court has held as under:-
"9. Having heard the learned counsel for the respective parties and considering the scheme and the object and purpose of default bail/statutory bail, we are of the opinion that the High Court has committed a grave error in imposing condition that the appellant shall deposit a 5/4 https://www.mhc.tn.gov.in/judis Crl.O.P.No.8715 of 2023 sum of Rs 8,00,000 while releasing the appellant on default bail/statutory bail. It appears that the High Court has imposed such a condition taking into consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit Rs 7,00,000. However, as observed by this Court in catena of decisions and more particularly in Rakesh Kumar Paul [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] , where the investigation is not completed within 60 days or 90 days, as the case may be, and no charge-sheet is filed by 60th or 90th day, the accused gets an “indefeasible right” to default bail, and the accused becomes entitled to default bail once the accused applies for default bail and furnish bail. Therefore, the only requirement for getting the default bail/statutory bail under Section 167(2) CrPC is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the 6/4 https://www.mhc.tn.gov.in/judis Crl.O.P.No.8715 of 2023 investigation is not completed and no charge-sheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. No other condition of deposit of the alleged amount involved can be imposed. Imposing such condition while releasing the accused on default bail/statutory bail would frustrate the very object and purpose of default bail under Section 167(2) CrPC. As observed by this Court in Rakesh Kumar Paul [Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] and in other decisions, the accused is entitled to default bail/statutory bail, subject to the eventuality occurring in Section 167 CrPC, namely, investigation is not completed within 60 days or 90 days, as the case may be, and no charge-sheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail."
"9.2. The circumstances while considering the regular bail application under Section 437 Code of Criminal Procedure are different, while considering the 7/4 https://www.mhc.tn.gov.in/judis Crl.O.P.No.8715 of 2023 application for grant of bail/statutory bail. Under the circumstances, the condition imposed by the High Court to deposit Rs.8,00,000/-, while releasing the Appellant on default bail/statutory bail is unsustainable and deserves to be quashed and set aside”.
9. Applying the ratio laid down by the Apex Court in the above decision, this Court is of the view that the condition pointed out by the petitioner, imposed by the Court below, is onerous inviting this Court's interference. Accordingly, the said condition imposed by the Court below is removed.
10. It is made clear that the other conditions imposed by the court below remain unaltered. The Criminal Original Petition is ordered accordingly.
25.04.2023 drl Index:Yes/No Internet: Yes/No 8/4 https://www.mhc.tn.gov.in/judis Crl.O.P.No.8715 of 2023 A.D.JAGADISH CHANDIRA.,J.
drl To
1.The Special Judge under Tamil Nadu Protection of Interests of Depositors (in Financial Establishment) Act, 1997 Chennai.
Crl.O.P.No.8715 of 2023
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