‘Disquieting trend’ observed by the Supreme Court in matters of bail under Section 438 CrPC where the accused deposited money

On July 04, the Supreme Court of India was hearing the Ramesh Kumar vs. The State of NCT of Delhi matter where an appeal was filed against a pre-arrest bail condition imposed by the Delhi High Court. In this case, the appellant was accused in an FIR of cheating offence in a development agreement. Bail was granted by the High Court subject to the condition of the appellant depositing 22 lakh with the trial court followed by an undertaking given by the appellant. As the High Court refused to extend the time to meet the condition, the appellant moved to the Supreme Court. The bench consisting of Justice Dipankar Datta and Justice S Ravindra Bhat disapproved of the High Court’s practice to deposit an amount as a condition for granting anticipatory bail for an offence of cheating under Section 420 of IPC (Indian Penal Code). The bench termed this practice as a “disquieting trend” that creates an impression among the offencers that they can secure bail by depositing money. The Supreme Court further stated that “Law regarding the exercise of discretion while granting a prayer for bail under section 438 of the CrPC having been authoritatively laid down by this Court, we cannot but disapprove the imposition of a condition of the nature under challenge.”

The top Court observed, “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 mature of undertakings to keep in deposit/ repay any amount while seeking bail under section 438 of the CrPC and incorporating a condition in that behalf for deposit/payment as a pre-requisite for grant of bail.” In context with the bail condition, the bench also stated that such imposed conditions must not be onerous. It added, “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, the 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.”

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Moreover, the top Court said, “In exceptional cases such as where an allegation of misappropriation of public money by the accused is leveled 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.” It added, “We are minded to think that 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.”

The SC bench further opined that “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 the grant of anticipatory bail are well delineated and stand recognized by the 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.” Lastly, the top Court concluded that “the complainants have no right of audience before this Court or even the High Court having regard to the nature of offence alleged to have been committed by the appellant unless, of course, a situation for compounding of the offence under Section 420, IPC, with the permission of the Court, arises.” The appeal was then disposed of by the Supreme Court bench.

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