Madras High Court
Shri.A.Shafiq Ahmed vs The State Rep. By on 7 March, 2023
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 24.4.2023
Delivered on : 28.4.2023
CORAM:
THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.7778 of 2023
Shri.A.Shafiq Ahmed Petitioner
Vs.
The State rep. by
The Superintendent of Police,
SPE/CBI/ACB/Chennai.
(RC 032 2020 A 0006) Respondent
PRAYER: Criminal Original Petition filed under Section 482 read with
Section 439(1)(b) of the Code of Criminal Procedure, to call for the records
relating to the case in Crl.M.P.No.1306 of 2023 dated 7.3.2023 in
C.C.No.16 of 2022 on the file of IX Additional Special Judge for CBI
Cases, Chennai 600 104 and set aside or modify the bail condition directing
the petitioner/Accused No.25 herein to deposit Rs.25,00,000/- (Rupees
Twenty five lakhs only) thereon.
For Petitioner : Mr.R.Rajarathinam, Senior Counsel for
Mr.G.Saravanan
1
https://www.mhc.tn.gov.in/judis
For Respondent : Mr.K.Srinivasan,
Special Public Prosecutor (VC)
assisted by Mrs.G.Vrindha
ORDER
The petitioner herein, who has been arrayed as A25 in C.C.No.16 of 2022 pending on the fie of IX Additional Special Judge for CBI Cases, Chennai, has filed the present petition seeking to set aside one of the conditions imposed on him by the IX Additional Special Judge for CBI Case, Chennai while granting him bail by order dated 7.3.2023 in Crl.M.P.No.1306 of 2023.
2. The petitioner stands remanded to judicial custody on 25.2.2022 for the alleged offences punishable under Sections 120-B read with Sections 409, 419, 420, 465, 467, 468, 471 and 477-A IPC and Section 13(2) read with Section 13(1)(a) of the Prevention of Corruption Act, 1988 (as amended in 2018) and the substantive offences punishable under Sections 420, 465, 467, 468 and 471 IPC on the allegation that he had conspired with some co-accused and created forged documents in the name of Chennai Port Trust and Indian Bank and facilitated them to swindle the fund of Chennai 2 https://www.mhc.tn.gov.in/judis Port Trust, which was deposited in the Indian Bank, Koyambedu Branch in the form of Fixed Deposits.
3. Subsequently, the petitioner was arrested on 25.4.2022 by the Enforcement Directorate and remanded to judicial custody for the alleged offence punishable under Section 4 of the Prevention of Money Laundering Act, 2002 arraying him as Accused No.31 in the said case, which is pending trial on the file of IX Additional Special Judge for CBI Cases, Chennai in Special C.C.No.2 of 2002.
4. Now, the grievance of the petitioner in this case is that though he was granted bail in Crl.M.P.No.1307 of 2023 by the IX Additional Special Judge for CBI Cases, Chennai by order dated 4.3.2023 insofar as Spl.C.C.No.2 of 2022 on some conditions, he could not come out on bail even after complying with the condition imposed therein due to his inability to comply with a condition, among other conditions, to deposit a sum of Rs.25,00,000/- as security before the court imposed on him by the same court while granting bail in Crl.M.P.No.1306 of 2023 in respect of C.C.No.16 of 2022.
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5. Learned Senior Counsel Mr.R.Rajarathinam appearing for the petitioner would submit that though the petitioner has been granted bail by the court below by order dated 7.3.2023 in the case on hand, due to the specific condition to deposit a sum of Rs.25,00,000/-, which is onerous in nature, he could not enjoy the personal liberty guaranteed by the statute, especially, when the petitioner has been granted bail by the same court by order dated 4.3.2023 without any such onerous condition. Relying on the decision of the Apex Court in Mithun Chatterjee vs. State of Odisha (Special Leave to Appeal (Crl.) No.4705/2021 dated 12.11.2021) he would submit that the imposition of onerous condition for grant of bail tantamount to denial of bail and thereby, he seeks indulgence of this court in setting aside the specific condition.
6. Pointing out the gravity of the offence alleged against the petitioner, as narrated in the detailed counter affidavit filed by the respondent, to the effect that the petitioner had intentionally and deliberately forged the logo of Chennai Port Trust as well as the signatures of the authorised persons of Chennai Port Trust such as Chairman, FA & 4 https://www.mhc.tn.gov.in/judis CAO and Director, Mr.K.Srinivasan, learned Special Public Prosecutor appearing for the respondent would submit that the petitioner had conspired with other accused and created and forged the documents to swindle huge amount to the tune of Rs.45 crores and odd from the account of Chennai Port Trust maintained with Indian Bank Koyambedu. Referring to the conditions imposed by the court below while granting bail to the co- accused, he would submit that similar kind of conditions have been imposed on them for grant of bail, he would submit that the present petition is liable to be dismissed.
7. Heard the learned counsel appearing for the parties and perused the materials available on record.
8. A condition precedent to make a security deposit to the tune of Rs.25,00,000/- for grant of bail imposed on the petitioner has been challenged in this petition. As rightly pointed out by the learned Senior Counsel for the petitioner, the law is well settled that the conditions of bail cannot be so onerous so that their existence itself tantamounts to refusal of bail.
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9. The Apex Court, following its various decision on the issue, has held in a recent decision in Guddan @ Roop Narayan vs. State of Rajasthan (2023 LiveLaw (SC) 45) as under:-
"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 6 https://www.mhc.tn.gov.in/judis 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 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.” 7 https://www.mhc.tn.gov.in/judis
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 8 https://www.mhc.tn.gov.in/judis substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of 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 9 https://www.mhc.tn.gov.in/judis 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 10 https://www.mhc.tn.gov.in/judis default thereof he is to languish in jail for more than
10 months now, is 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 11 https://www.mhc.tn.gov.in/judis charge-sheeted 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 12 https://www.mhc.tn.gov.in/judis thereof is still languishing in jail, is sufficient indication that he was not able to make up the amount.
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."
10. Following the above decision, this court in Rajaram vs. State (Crl.O.P.(MD).No.2976 of 2023 dated 1.2.2023) and in Sankar vs. State (Crl.O.P.(MD).No.3938 of 2023 dated 2.3.2023) has set aside the condition imposed by the court below in those cases holding that imposing such onerous conditions tantamounts to refusal of bail.
11. In the case on hand, it is sought to be contended by the learned Special Public Prosecutor appearing for the respondent that the co-accused have been imposed with such conditions and thus, the petitioner, who is also on the same footing, cannot take a stand that he had been imposed with 13 https://www.mhc.tn.gov.in/judis onerous condition.
12. No doubt, the co-accused might have been imposed with similar conditions. Whereas, as far as the petitioner is concerned, the exclusive condition imposed has, in fact, in practical manifestation, acted as a refusal to the grant of bail. The petitioner is unable to pay the amount and he is languishing in jail. The petitioner had been arrested on 25.4.2022 and despite the bail having been granted on 7.3.2023, he is unable to come out is a sufficient indication that he is in unable raise funds. Further, it is also stated that the petitioner has not received any amount in the transaction. When the Apex Body has very recently held that imposing such onerous conditions are unsustainable, especially, when the petitioner has knocked the doors of this court, the respondent cannot stick on to the concept of parity as the settled principle would prevail over such concept and thereby this court has no hesitation to hold that the specific condition with regard to deposit of Rs.25,00,000/- imposed by the court below on the petitioner for grant of bail in the case on hand is liable to be set aside. Accordingly, it is set aside.
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13. It is made clear that the other conditions imposed by the court below shall remain unaltered. The Criminal Original Petition is ordered accordingly.
28.4.2023 Index:Yes/No Internet: Yes/No ssk.
To
1. IX Additional Special Judge for CBI Cases, Chennai 600 104.
2. The Superintendent of Police, SPE/CBI/ACB/Chennai.
3. Special Public Prosecutor, High Court, Madras.
15 https://www.mhc.tn.gov.in/judis A.D.JAGADISH CHANDIRA.,J.
ssk.
P.D. ORDER IN Crl.O.P.No.7778 of 2023 Delivered on 28.4.2023 16 https://www.mhc.tn.gov.in/judis