Case Note & Summary
The Supreme Court addressed a recurring issue where courts, while granting anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC), impose conditions requiring the accused to deposit or repay the amount allegedly cheated. The appellant, Ramesh Kumar, owned an immovable property and entered into agreements with a builder, Ashwani Kumar, for redevelopment. The builder then entered into a sale agreement with complainants Vinay Kumar and Sandeep Kumar for the second floor of the proposed building. Disputes arose, and the complainants lodged an FIR under Section 420 of the Indian Penal Code, 1860 (IPC) against the appellant. The appellant sought anticipatory bail, and the Delhi High Court granted it subject to depositing Rs. 20 lakhs. The Supreme Court held that such a condition is impermissible because Section 438 CrPC is not a recovery mechanism. The Court observed a disquieting trend where courts are unwittingly transforming bail proceedings into recovery processes. It reminded high courts and sessions courts not to be swayed by undertakings of accused to deposit money and not to impose deposit conditions as prerequisites for bail. The Court allowed the appeal, setting aside the condition of deposit while maintaining the anticipatory bail order.
Headnote
A) Criminal Procedure - Anticipatory Bail - Section 438 CrPC - Deposit Condition - Courts cannot impose a condition of deposit or repayment of the alleged cheated amount as a prerequisite for granting pre-arrest bail under Section 438 CrPC, as it transforms bail into a recovery mechanism and undermines the purpose of anticipatory bail. Held that such conditions are impermissible and courts must not be swayed by undertakings of accused to deposit money. (Paras 2-3)
B) Criminal Procedure - Anticipatory Bail - Section 438 CrPC - Recovery - The trend of imposing deposit conditions in Section 438 applications is disquieting and must be curbed. Held that high courts and sessions courts must not convert bail proceedings into recovery processes. (Para 2)
Issue of Consideration
Whether courts can impose a condition of deposit or repayment of the alleged cheated amount as a prerequisite for granting anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.
Final Decision
The Supreme Court allowed the appeal, set aside the condition of deposit of Rs. 20 lakhs imposed by the Delhi High Court, and maintained the anticipatory bail granted to the appellant without such condition.
Law Points
- Anticipatory bail under Section 438 CrPC cannot be conditioned on deposit or repayment of disputed amounts
- Section 438 CrPC is not a recovery mechanism
- Courts must not be swayed by accused's undertakings to deposit money
- Pre-arrest bail conditions must be limited to securing presence and preventing tampering
Case Details
Criminal Appeal No. of 2023 [Arising out of SLP(Crl.) No.2358 of 2023]
The State of NCT of Delhi
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Nature of Litigation
Criminal appeal against condition imposed in anticipatory bail order requiring deposit of amount allegedly cheated.
Remedy Sought
Appellant sought setting aside of the condition of deposit of Rs. 20 lakhs imposed by the Delhi High Court while granting anticipatory bail.
Filing Reason
The appellant was accused of cheating under Section 420 IPC and the High Court granted anticipatory bail subject to depositing Rs. 20 lakhs.
Previous Decisions
Delhi High Court granted anticipatory bail to the appellant with a condition to deposit Rs. 20 lakhs.
Issues
Whether a court can impose a condition of deposit or repayment of the alleged cheated amount as a prerequisite for granting anticipatory bail under Section 438 CrPC.
Submissions/Arguments
The appellant argued that the condition of deposit is impermissible as Section 438 CrPC is not a recovery mechanism.
The respondent State supported the condition as a safeguard to ensure the accused does not abscond.
Ratio Decidendi
Anticipatory bail under Section 438 CrPC cannot be conditioned on deposit or repayment of the disputed amount, as it would convert bail into a recovery mechanism and defeat the purpose of the provision. Courts must not be swayed by undertakings of accused to deposit money and must refrain from imposing such conditions.
Judgment Excerpts
It has been found by us in multiple cases in the past several months that upon First Information Reports being lodged inter alia under section 420 of the Indian Penal Code, 1860, judicial proceedings initiated by persons, accused of cheating, to obtain orders under Section 438 of the Code of Criminal Procedure, 1973 are unwittingly being transformed into processes for recovery of the quantum of money allegedly cheated and the courts driven to impose conditions for deposit/payment as pre-requisite for grant of pre-arrest bail.
The present case is no different 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 Cr. PC. and incorporating a condition in that behalf for deposit/payment as a pre-requisite for grant of bail.
Procedural History
The appellant filed an application for anticipatory bail under Section 438 CrPC before the Delhi High Court in connection with an FIR under Section 420 IPC. The High Court granted bail subject to depositing Rs. 20 lakhs. The appellant appealed to the Supreme Court against this condition.
Acts & Sections
- Indian Penal Code, 1860: 420
- Code of Criminal Procedure, 1973: 438
