Code of Criminal Procedure, 1973 – s.438 – Anticipatory Bail – Payment of amount as a condition precedent for grant of bail – Legality of – An FIR was registered u/ss. 420, 406 r/w s. 34 – As per the FIR, an agreement to sell was executed by and between the builder and the complainants – Complainants had made payment of Rs. 17,00,000/- by issuing cheques favouring the appellant-owner allegedly on the instructions of the builder – Complainants were not handed over the floor which they intended to purchase – Apprehending arrest, the appellant moved an application u/s 438 Cr.P.C. before the trial court, which was dismissed – Appellant approached High Court – High Court granted bail to the appellant upon a condition of depositing Rs. 22,00,000/- – Appellant failed to deposit the said amount – Bail granted to the appellant u/s. 438 Cr.P.C. got revoked – On appeal, held: The conditions to be imposed must not be onerous or unreasonable or excessive – All such conditions that would facilitate the appearance of the accused before the investigating officer/court, unhindered completion of investigation/trial and safety of the community assume relevance – However, inclusion of a condition for payment of money by the applicant for bail tends to create an impression that bail could be secured by depositing money alleged to have been cheated – That is really not the purpose and intent of the provisions for grant of bail – It is in exceptional cases such as where an allegation of misappropriation of public money by the accused is levelled and the accused while seeking indulgence of the Court to have his liberty secured/restored volunteers to account for the whole or any part of the public money allegedly misappropriated – This approach would be in the larger interest of the community – However, such an approach would not be warranted in cases of private disputes where private parties complain of their money being involved in the offence of cheating – In the instant case, the High Court ought to have realized that having regard to the nature of dispute between the parties, which is predominantly civil in nature, the process of criminal law cannot be pressed into service for settling a civil dispute – If at all the offence alleged against the appellant is proved resulting in his conviction, he would be bound to suffer penal consequence(s) but despite such conviction he may not be under any obligation to repay the amount allegedly received from the complainants. Disposing of the appeal, the Court
HELD: 1. Sub-section (2) of section 438 of the Cr. PC does empower the high court or the court of sessions to impose such conditions while making a direction under sub-section (1) as it may think fit in the light of the facts of the particular case and such direction may include the conditions as in clauses (i) to (iv) thereof. However, a reading of the precedents laid down by this Court referred to above makes the position of law clear that the conditions to be imposed must not be onerous or unreasonable or excessive. In the context of grant of bail, all such conditions that would facilitate the appearance of the accused before the investigating officer/court, unhindered completion of investigation/trial and safety of the community assume relevance. However, inclusion of a condition for payment of money by the applicant for bail tends to create an impression that bail could be secured by depositing money alleged to have been cheated. That is really not the purpose and intent of the provisions for grant of bail. In exceptional cases such as where an allegation of misappropriation of public money by the accused is levelled and the accused while seeking indulgence of the court to have his liberty secured/restored volunteers to account for the whole or any part of the public money allegedly misappropriated by him, it would be open to the concerned court to consider whether in the larger public interest the money misappropriated should be allowed to be deposited before the application for anticipatory bail/bail is taken up for final consideration. After all, no court should be averse to putting public money back in the system if the situation is conducive therefor. This approach would be in the larger interest of the community. However, such an approach would not be warranted in cases of private disputes where private parties complain of their money being involved in the offence of cheating. [Para 26][1178-E-H; 1179-A-C]
2. Turning to the facts here, it is found that the version in the FIR, even if taken on face value, discloses payment through cheques of Rs.17,00,000/- (Rupees seventeen lakh) in the name of the appellant and not Rs.22,00,000/- (Rupees twenty-two lakh). The court is not been able to comprehend how the High Court arrived at the latter figure as payable by the appellant and why the appellant’s counsel as well agreed with such figure. Prima facie, there appears to be some sort of a calculation error. Also, prima facie, there remains some doubt as regards the conduct of the appellant in receiving cheques from the complainants without there being any agreement inter se. Be that as it may, the High Court ought to have realized that having regard to the nature of dispute between the parties, which is predominantly civil in nature, the process of criminal law cannot be pressed into service for settling a civil dispute. Even if the appellant had undertaken to make payment, which was a last ditch effort to avert losing his liberty, such undertaking could not have weighed in the mind of the High Court to decide the question of grant of anticipatory bail. The tests for grant of anticipatory bail are well delineated and stand recognized by passage of time. The High Court would have been well-advised to examine whether the appellant was to be denied anticipatory bail on his failure to satisfy any of such tests. It does seem that the submission made by counsel on behalf of the appellant before the High Court had its own effect, although it was far from being a relevant consideration for the purpose of grant of bail. [Para 27][1179-D-H]
3. It also does not appear from the materials on record that the complainants have instituted any civil suit for recovery of money allegedly paid by them to the appellant. If at all the offence alleged against the appellant is proved resulting in his conviction, he would be bound to suffer penal consequence(s) but despite such conviction he may not be under any obligation to repay the amount allegedly received from the complainants. This too is an aspect which the High Court exercising jurisdiction under section
438 of the Cr. PC did not bear in mind. Under the circumstances, the High Court fell in grave error in proceeding on the basis of the undertaking of the appellant and imposing payment of Rs.22,00,000/- (Rupees twenty-two lakh) as a condition precedent for grant of bail. [Paras 28, 29][1180-A-C]
Gurbaksh Singh Sibbia and others vs. State of Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 – followed. Mahesh Candra vs. State of U.P. (2006) 6 SCC 196; Munish Bhasin vs. State (NCT of Delhi) (2009) 4 SCC
45 : [2009] 2 SCR 806; Sumit Mehta vs. State (NCT of Delhi) (2013) 15 SCC 570 : [2013] 10 SCR 125; Dilip Singh vs. State of Madhya Pradesh (2021) 2 SCC 779; Bimla Tiwari vs. State of Bihar (2023) SCC OnLine SC
51 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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