TMI Blog2008 (9) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... - 865 of 2007 - - - Dated:- 19-9-2008 - A.S. Oka, J. [Order]. - The Petitioner has invoked the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code of 1973") for challenging that part of the order dated 15th April 2006 passed by the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, by which the Petitioner was directed to deposit the passport with the Customs Department and by which the petitioner was directed not to leave India without the permission of the Court in writing. The question which is raised for consideration in this Petition is whether a Court under the said Code of 1973 while granting bail in a bailable offence can impose a condition of surrender of passport and further condition that the accused shall not travel abroad without permission of the Court. 2. The case of the Petitioner is that the officers of the Directorate of Revenue Intelligence arrested the Petitioner under Section 104 of the Customs Act, 1962 (hereinafter referred to as "the said Act of 1962") for an alleged offence punishable under Section 135(1)(ii) of the said Act of 1962. The Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the police to release the accused on bail in view of Section 496 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code'). He also placed reliance on a decision of the Apex Court in the case of T. Barai v. Henry Ah Hoe and Another [1983 (1) SCC 177]. He submitted that under Section 436(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the said Code'), there is an unfettered right vesting in the accused to be enlarged on bail when he is ready to offer bail. 5. The learned Counsel appearing for the first and the second Respondents did not dispute that the offence alleged against the Petitioner was a bailable offence. She invited my attention to various averments made in the affidavit-in-reply of Shri K.A. Shaikh, Assistant Director, Directorate of Revenue Intelligence of Mumbai. She submitted that the case involves a large scale conspiracy relating to the import of goods of the value of Rs. 150 crores involving duty evasion of Rs. 65 crores. She submitted that there is an apprehension that the if the Petitioner is permitted to travel abroad, he will not remain available for the purpose of investigation and it will be very difficul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.] (2) Notwithstanding anything contained in sub-section (1), where a 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." 8. Sub-section (1) of Section 436 provides that when any person other than a person accused of a non-bailable offence is arrested, or detained without warrant by an officer incharge of a Police Station, or appears or is brought before the Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before the Court to give bail, the said person shall be released on bail. Thus, the said provision is applicable to all offences which are not non-bailable. The offences which are non-bailable are obviously the bailable offences. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of, or conspiracy or attempt to commit, any such offence. Under Clause (b) of sub-section (1) of Section 439, the concerned Court or this Court has jurisdiction to set aside or modify a condition imposed by the Magistrate while releasing a person on bail. From Section 437 and 439 of the said Code, it is apparent that when an accused is alleged of commission of a non-bailable offence, the bail is not a matter of right. In a given case the accused may acquire a right to be released on bail on account of failure to file the charge-sheet within specified time. While granting bail either under Section 437 of 439, the Court can impose appropriate conditions. 11. It will be necessary at this stage to refer to Section 441 of the said Code which reads thus :- "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 unti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the accused person is prepared to give 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." (Emphasis added) 15. In the aforesaid case before the Apex Court, the Appellant was charged with commission of a bailable offence. The Appellant was enlarged on bail by the learned Magistrate. On application made by the complainant for cancellation of bail, the learned Magistrate declined to cancel the bail on the ground of lack of jurisdiction. An application was made by the Applicant before this Court invoking inherent powers of this Court under Section 561-A of the old Code. This Court took a view that under the inherent powers of this Court, bail can be cancelled. This Court proceeded to cancel the bail granted in favour of the Appellant. The order of this Court was challenged in the Apex Court. The argument before the Apex Court was that notwithstanding the order of cancellation of bail passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a week from his arrest, he has to be discharged on his executing a bond. Thus, not only sub-section (1) but the first proviso and the explanation thereto clearly show that an unfettered right is granted to be enlarged on bail to a person other than a person accused of non-bailable offence arrested or detained without any warrant by an Officer in charge of a police station or when such a person appears or is brought before a Court. Such a person has to be enlarged on bail provided he is prepared to give bail. If such person is indigent and is unable to furnish surety, by dispensing with the requirement of furnishing bail or surety, he has to be discharged on his executing a personal bond without sureties. If such a person is unable to give bail within a period of one week from the date of his arrest, by legal fiction, the law presumes that the person is an indigent person and thus he will have to be discharged on executing a personal bond without sureties. The decision of the Apex Court in the case of Talab Haji Hussain (supra) deals with a case where bail of an accused is cancelled and he is arrested and committed to the custody. In such a case, the Apex Court observed that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of passport, such a condition will defeat the absolute right of the accused under Section 436(1) of the said code to be set at liberty. In the circumstances, while enlarging the petitioner on bail in a bailable offence, the learned Magistrate has no jurisdiction to direct deposit of the passport. The Magistrate cannot impose a condition while granting bail in a bailable offence of not leaving India without the permission of the Court. Whenever the Petitioner is enlarged on bail, he is bound to attend the concerned Court on the date fixed or whenever he is called upon to do so. This obligation is created by the bail bond. If he desires to remain absent, he will have to seek an exemption from the Court. In a given case if there is an apprehension that the accused is likely to abscond, steps can also to be taken under the appropriate provisions of law. Steps can be also taken for impounding the passport. 20. In the circumstances, I pass the following order : (1) The application is allowed by setting aside the direction in order dated 15th April 2006 of depositing the passport as well as the consequential direction that the Petitioner shall not leave India without prior permissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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