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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.

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.