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TMI Blog2019 (3) TMI 1898X X X X Extracts X X X X X X X X Extracts X X X X ..... tween her and her husband. Learned counsel further contends that condition of depositing the aforesaid amount is not only illegal and arbitrary but unreasonable also. The petitioner is having no criminal background and a serious prejudice will be caused to her as due to non-deposit of said amount, she cannot be released on bail. Learned counsel also contends that the petitioner also filed an application for modification of order dated 14.05.2018, which was dismissed vide order dated 31.05.2018. Learned counsel for the petitioner has also relied upon the judgments of Hon'ble Apex Court in the case of Sandeep Jain Vs. National Capital Territory of Delhi rep. by Secretary, Home Department 2000 (1) RCR (Criminal) 517, Ramathal and others Vs. Inspector of Police and another 2009 (12) SCC 721 and of Madras High Court in the case of Amaldoss and others Vs. State, Rep. by the Inspector of Police, Patteeswaram Police Station, Thanjavur District 2015 (13) RCR (Criminal) 809, in support of his contentions. Learned counsel for the respondent-State has opposed the submissions made by learned counsel for the petitioner on the ground that a detailed order has been passed while granting bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndertaking that he shall comply with such directions as may be given by the Court.] (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his 1 guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail] or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary- (a) In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) In order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cr.PC. are also relevant and they are reproduced as under:- "440. Amount of bond and reduction thereof. (1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. (2) The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced. :441. Bond of accused and sureties. (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. (2) Where any condition, is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. (4) For the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Sreenivasulu Reddy Vs. State of Tamil Nadu (2002) 10 SCC 653, wherein, the Court granted anticipatory bail to accused with a condition to deposit an amount of Rs. 50,000/- along with other conditions. Aggrieved by imposition of such condition, the accused preferred an appeal before Hon'ble the Apex Court. Hon'ble the Apex Court has held that while exercising jurisdiction under Section 438 (2) of the Cr.P.C., the Court ought only to impose such conditions/terms for enlarging an accused on bail as would ensure that the accused does not abscond. The relevant portion of the judgment as mentioned in para 6 of the said judgment is reproduced as under:- "Having considered the rival submissions and the provisions of Section 438 Cr.P.C., we are of the considered opinion that the Court while exercising jurisdiction under Section 438 Cr.P.C., must bear in mind and be satisfied that the accused will not abscond or otherwise misuse liberty and this can be ascertained from several factors like conduct of the accused in the past, his assets in the country and so on. But, while granting such anticipatory bail, though the Court may impose such conditions as it thinks fit, but the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case do not warrant such extreme condition to be imposed." The Supreme Court, while concluding, held as - "11. While exercising power under Section 438 of the Code, the court is duty-bound to strike a balance between the individual‟s right to personal freedom and the right of investigation of the police. For the same, while granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. The object of Patna High Court Cr.Misc. No.1320 of 2016 (3) dt.01-04-2016 11 putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the court while imposing conditions must be exercised with utmost restraint. 13.We also clarify that while granting anticipatory bail, the courts are expected to consider and keep in mind the nature and gravity of accusation, antecedents of the applicant, namely, about his previous involvement in such offence and the possibility of the applicant to flee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled to be released on bail, then no such condition other than as provided in Section 437 (3) or 438 (2) Cr.P.C. can be imposed. Imposition of such unreasonable condition is not only beyond the purview of the provisions of the Cr.P.C. but also beyond the powers of the Court as has been held by Madras High Court in Amaldoss's case (supra). It has further been held that such condition is beyond the powers of the Court and discretion does not mean that it has no arena or boundary. It has been stated to the extent that no Court having howsoever absolute power can traverse beyond the arena carved out for it. Even absolute discretion does not admit element of arbitrariness or whimsicality or capriciousness. In view of the law position as discussed above, facts and circumstances of the case, I am of the considered view that condition to deposit an amount of Rs. 5 lacs in cash, imposed by learned Additional Sessions Judge, Gurugram vide order dated 14.05.2018 while granting bail to the petitioner is unreasonable and arbitrary and the same is liable to be set aside. Accordingly, the present petition is partly allowed and condition to deposit an amount of Rs. 5 lacs in cash vide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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