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TMI Blog2023 (7) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent from the others and it is considered appropriate to remind the high courts and the sessions courts not to be unduly swayed by submissions advanced by counsel on behalf of the Accused in the nature of undertakings to keep in deposit/repay any amount while seeking bail Under Section 438 of the Code of Criminal Procedure and incorporating a condition in that behalf for deposit/payment as a pre-requisite for grant of bail. 3. The bare facts relevant for a decision on this appeal, gathered from the impugned judgment of the Delhi High Court, are these. The Appellant before us is the owner of an immovable property. With an intention to re-develop the same, he had entered into three agreements with one Ashwani Kumar ("the builder", hereafter) dated 10th and 19th December, 2018 and 30th January, 2019. In terms of the agreement dated 19th December, 2018, the builder was required to construct a multi-storied building in which the Appellant would have ownership rights in respect of the 3rd floor and the upper floor, apart from Rs. 55,00,000/- (Rupees fifty-five lakh) to be paid to him by the builder, whereas the builder would have rights to deal with the 1st and the 2nd floors together ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder. 7. Since the complainants had effected payment of substantial amount of money to the Appellant and the builder having failed to deliver possession of the second floor of the proposed building, the complainants felt cheated and urged the police to investigate the crime committed inter alia by the Appellant and the builder. 8. Apprehending arrest, the Appellant moved the relevant criminal court [MACT-02 (CENTRAL)] seeking an order Under Section 438 of the Code of Criminal Procedure. Initially, on 30th November, 2011, the Presiding Officer granted interim protection from arrest to the Appellant, subject to his cooperating with the investigating agency, upon being informed by the investigating officer that no agreement was executed by and between the Appellant and the complainants. However, for reasons assigned in the subsequent order dated 18th January, 2022, the application was dismissed by the Presiding Officer and interim protection earlier granted to the Appellant was withdrawn. 9. In the background of the aforesaid facts and circumstances, the Appellant approached the High Court seeking an order Under Section 438 of the Code of Criminal Procedure. Similar approach was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the result that he is still unable to enjoy his own property which was required to be redeveloped by the builder within the time stipulated in the relevant agreement. Finally, it has been contended on behalf of the Appellant that having regard to the decision of this Court in Munish Bhasin v. State (NCT of Delhi) (2009) 4 SCC 45, the impugned condition imposed for grant of bail requiring deposit of Rs. 22,00,000/- (Rupees twenty-two lakh) in the form of FDR in the Trial Court is bad in law and liable to be set aside. 13. The appeal has been opposed by counsel for the State. According to him, the impugned condition was imposed because the Appellant through his counsel had volunteered to keep in deposit Rs. 22,00,000/- (Rupees twenty-two lakh) without prejudice to his rights and contentions. Now that the High Court had proceeded to make its order based on such undertaking and also that the Appellant had applied for extension of time which was granted, it is not an appropriate case where this Court should interfere in the exercise of its jurisdiction. 14. Having heard the parties and on perusal of the materials on record, there seems to be little doubt that the Appellant had v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion of the courts to grant anticipatory bail. 19. We start with Gurbaksh Singh Sibbia and Ors. v. State of Punjab (1980) 2 SCC 565, a Constitution Bench decision of this Court. It was held there as follows: 26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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. 13. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the Appellant and his parents were entitled to bail Under Section 438 of the Code. When the High Court had found that a case for grant of bail Under Section 438 was made out, it was not open to the Court to direct the Appellant to pay Rs. 3,00,000 for past maintenance and a sum of Rs. 12,500 per month as future maintenance to his wife and child. In a proceeding Under Section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. 22. Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 arises out of a decision of the High Court granting anticipatory bail but inter alia on the condition that the Appellant, Accused of commission of offences punishable Under Sections 420 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerous and unreasonable. It must be remembered that the court has not even come to the conclusion whether the allegations made are true or not which can only be ascertained after completion of trial. Certainly, in no words are we suggesting that the power to impose a condition of this nature is totally excluded, even in cases of cheating, electricity pilferage, white-collar crimes or chit fund scams, etc. 15. The words 'any condition' used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed. 23. We may next take note of two decisions of this Court of recent origin. 24. In Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, this Court sounded a note of caution in the following words: 3. By imposing the condition of deposit of Rs. 41 lakhs, the High Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted irrespective of any payment or any offer of payment. 11. We would further emphasize that, ordinarily, there is no justification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the person apprehending arrest ought to make payment. Recovery of money is essentially within the realm of civil proceedings. 26. Law regarding exercise of discretion while granting a prayer for bail Under Section 438 of the Code of Criminal Procedure having been authoritatively laid down by this Court, we cannot but disapprove the imposition of a condition of the nature under challenge. Assuming that there is substance in the allegation of the complainants that the Appellant (either in connivance with the builder or even in the absence of any such connivance) has cheated the complainants, the investigation is yet to result in a charge-sheet being filed Under Section 173(2) of the Code of Criminal Procedure, not to speak of the alleged offence being proved before the competent trial court in accordance with the settled procedures and the applicable laws. Sub-section (2) of Section 438 of the Code of Criminal Procedure does empower the high court or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 we are inclined to believe 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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