Deposit Of Cash As A Condition Precedent For Granting Anticipatory Bail.
Author: Ritik Saluja, GGSIPU, Delhi
Whenever a person is accused of an offence and either is arrested for the commission of offence or has the anticipation that order for his arrest will be released or has already been released can apply for bail in order to be free.
Whether he will be granted bail as his right or granting of bail lies on the discretion of the court is decided by the nature of the offence accused of.
Provisions related to anticipatory bail is given in Section 438 The Code of Criminal Procedure, 1973 ‘438. Direction for grant of bail to person apprehending arrest.
- When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
- When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other conditions as may be imposed under subsection (3) of section 4372, as if the bail were granted under that section.
- If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under subsection (1).
Thus according to provision, it is the discretion of the court to impose deposition of money as a condition precedent for grant of anticipatory bail. But at the same time money directed to be deposited should not be much so as not to cause an excessive burden on the person to be arrested. There is a challenge before the judiciary so as to draw a balance between ensuring unobstructed justice and not to but the excessive burden on the accused.
In the landmark case of Sumit Mehta vs the State Of N.C.T. Of Delhi on 13 September 2013 accused was charged under Sec 420, 467, 468 and 471 of the Indian Penal Code, 1860 and while granting anticipatory bail to accused single judge bench of the Delhi High Court directed him to deposit an amount of Rs.1,00,00,000/- (one crore) in fixed deposit in the name of the complainant in any nationalized bank and to keep the FDR with the Investigating Officer.
The only point for consideration in this appeal was whether the condition of depositing an amount of Rs. 1,00,00,000/- in fixed deposit for anticipatory bail is sustainable in law and whether such condition is outside the purview of Section 438 of the Code?
The court ruled 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 from justice. It is also the duty of the Court to ascertain whether the accusation has been made with the object of injuring or humiliating him by having him so arrested. It is needless to mention that the Courts are duty-bound to impose appropriate conditions as provided under sub-section (2) of Section 438 of the Code. 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 circumstances and effective in the pragmatic sense and should not defeat the order of grant of bail. The court is of the view that the present facts and circumstances of the case do not warrant such extreme conditions to be imposed.
In the matter of Ramathal & Others vs. Inspector of Police and Another reported in [ (2009) 12 SCC 721], the Supreme Court was considering a case in which the High Court had passed an order granting anticipatory bail on condition that in the event of arrest, the accused persons shall be enlarged on bail on their depositing Rs. 32,00,000/- before the Judicial Magistrate and also on their executing their personal bond of Rs. 1,00,000/- with two sureties each for the like sum to the satisfaction of the Magistrate.
In that case, after hearing the parties, the Hon’ble Supreme Court ruled that in the aforesaid facts and circumstances, the High Court passed the impugned order with the intention of protecting the interests of the complainant in the matter. In our considered opinion, the approach of the High Court was incorrect as under the impugned order a very unreasonable and onerous condition has been laid down by the Court as a condition precedent for grant of anticipatory bail.”