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Chhattisgarh High Court · body

2014 DIGILAW 177 (CHH)

Shashi Tiwari v. State of C. G.

2014-04-25

GOUTAM BHADURI

body2014
ORDER Goutam Bhaduri, J. 1. The inherent jurisdiction of this Court is invoked by way of Section 482 of the Code of Criminal Procedure by the applicants against the conditions imposed by the learned Court below of First Additional Sessions Judge. The order is dated 13-12-2013 whereby though the anticipatory bail was granted to the applicants but certain conditions were imposed by the Court below, which are reproduced as follows. The main grievance was with respect to imposition of condition No. 3 to the petitioner, which purports to get permission from Court while moving out of State of Chhattisgarh. ^^¼1½ vkosndx.k ;fn ipkl&ipkl gtkj dh nks i`Fkd~&i`Fkd~ l{ke tekur ,oa ,d yk[k :i, dk Lo;a dk eqpydk fxjrkj fd;s tkus dh n’kk esa fxjrkj djus okys vf/kdkjh dh laiqf”V ;ksX; is’k djsa rks mUgsa vfxze tekur ij fjgk fd;k tkosA ¼2½ vkosndx.k fopkj.k U;k;ky; ds le{k fu/kkZfjr is’kh rkjh[kksa ij mifLFkr gksaxsA ¼3½ vkosndx.k fopkj.k U;k;ky; dh iwoZ vuqefr ds fcuk N-x- jkT; ls ckgj ugha tk;saxsA** Learned Counsel for the applicant would submit that applicant No. 1 is an old lady of aged about 80 years while applicant No. 2 being Superior Class I Officer and at present posted as Chief Engineer in PWD has to travel various States because of the official engagements and the order granting bail imposed conditions especially condition No. 3, which purports that the applicant shall not travel out of the State of Chhattisgarh without taking permission of the Court, is harsh and arbitrary. 2. Learned Counsel for the applicant would submit that the petitioner No. 2 is predominantly effected by condition No. 3, which is imposed that prior permission is required to be obtained on each and every time for going out of the State. He would further submit that the condition to restrict the travel is against the individual liberty, which is protected by Article 21 of the Constitution of India as the right to travel is a facet of personal liberty. He would, therefore, submit that Condition No. 3 so far as it relates to obtaining prior permission on each and every time before leaving the boundary of State of Chhattisgarh, is a cumbersome one as it consumes time and causes unnecessary hardship to the petitioner No. 2. He would, therefore, submit that Condition No. 3 so far as it relates to obtaining prior permission on each and every time before leaving the boundary of State of Chhattisgarh, is a cumbersome one as it consumes time and causes unnecessary hardship to the petitioner No. 2. He would further submit that earlier on 3 occasions the petitioner had to travel out of Chhattisgarh; on two occasions, to attend the marriage ceremony and on one occasion to seek the legal assistance from a Counsel of outside the State. Therefore, he would submit that on each and every time, before movement taking prior permission from Court curtails the right to travel, which is unreasonable and beyond the statutory powers. He would submit that putting such conditions causing cumbersome procedure cannot be imposed while granting bail under Section 438 of the Code of Criminal Procedure. Therefore, he submits that such Condition No. 3 may be removed. 3. Counsel for respondent No. 2 would further submit that the bail is granted with an idea to procure the attendance on each and every date that of accused and the entire idea is that the petitioners should attend the Court. He would further submit that it will be within the ambit of reasonable restriction, if the conditions so imposed by the Court do not curtail the right of the petitioners in any way whatsoever. 4. Per contra, learned State Counsel and Counsel for the objector/respondent No. 2 vehemently opposed the same. 5. I have appreciated the arguments advanced by learned Counsel for the petitioners as also learned State Counsel and learned Counsel for the objector. 6. The conditions, which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub-section (3) of Section 437, Cr.PC., which are reproduced herein below:-- "Section 438 deals with direction for grant of bail to person apprehending arrest. Sub-section (2) of Section 438 reads as under:-- (I) "438(2). 6. The conditions, which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub-section (3) of Section 437, Cr.PC., which are reproduced herein below:-- "Section 438 deals with direction for grant of bail to person apprehending arrest. Sub-section (2) of Section 438 reads as under:-- (I) "438(2). When the High Court or the Court of Sessions makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-- (i) a condition that the person shall make himself/herself 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 condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section. (II) Section 437(3), Cr.PC reads as under:-- "When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall imposed the conditions,-- (a) That such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such 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 or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary." 7. The aforesaid statute has been further interpreted by Hon'ble the Supreme Court in a case law reported in case of Munish Bhasin and others v. State (Govt. of NCT of Delhi) and another, : 2009(3) M.P.H.T. 1 (SC) : 2009 4 SCC 45 . Paragraphs 10, 11 and 12 of the said decision are relevant here and quoted below:-- "10. It is well-settled that while exercising discretion to release an accused under Section438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. 11. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub-section (3) of Section 437 of the Code. Normally, conditions can be imposed (i) to secure the presence of the accused before the Investigating Officer or before the Court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court, or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order, etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under Section 438 of the Code. 12. While imposing conditions on an accused who approaches the Court under Section438 of the Code, the Court should be extremely chary in imposing conditions 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." 8. 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." 8. Further Hon'ble the Supreme Court in a case decided in Sumit Mehta v. State of NCT Delhi, decided on 13th September, 2013, has further laid down the aforesaid principles by putting the condition of bail while allowing the application under Section 438 of Cr.PC, is not justified. The Paragraphs 12 and 13 thereof are relevant here and quoted below:-- "12. While exercising power under Section 438 of the Code, the Court is duty bound to strike a balance between the individuals right to personal freedom and the right of investigation of the police. For the same, while granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised without utmost restraint. 13. The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution." 9. In the opinion of this Court, the right to travel is a facet of personal liberty and is protected by Article 21 of the Constitution of India. The said principle has been laid down in the case of Maneka Gandhi v. Union of India and others, : (1978) 1 SCC 248 and Satwant Singh Sawhney v. D. Hamarathnam, Assistant Passport Officer, GOI, New Delhi and others, : AIR 1976 SC 1836 . This fact cannot be shelved that condition of obtaining prior permission before leaving the boundary of Chhattisgarh is a cumbersome one as permission takes time and causes hardship as the entire process of travel has to be routed through the Court by making proper applications well in advance. 10. This fact cannot be shelved that condition of obtaining prior permission before leaving the boundary of Chhattisgarh is a cumbersome one as permission takes time and causes hardship as the entire process of travel has to be routed through the Court by making proper applications well in advance. 10. Undoubtedly, the right to travel can be curtailed by reasonable restrictions and fair procedure but such condition should be rarely imposed by the Trial Court while granting bail and that too can be imposed only for cogent reasons. The reading of the order of the entire bail do not whisper any reason or points out such antecedents or any reason for putting such condition. Therefore, in view of the principle laid down by Hon'ble the Supreme Court, taking in totality of the order, this Court is of the view that condition No. 3 would certainly restrict the existing fundamental right to travel and transgresses the right guaranteed to an individual to travel. Therefore, in my considered opinion, in the present circumstances of the case, putting up of such conditions appears to be harsh and excessive and is liable to be set aside. 11. Learned Counsel for the petitioners, however, would submit that condition has been imposed on the accused to appear before the Trial Court on each and every time, therefore, by implication, the right to move the application for exemption from personal attendance has been taken away. These arguments are misconceived, in view of the above direction. For the foregoing reasons, the petition is allowed. The condition imposed by the learned Court below at Serial No. 3 to the effect that vkosndx.k fopkj.k U;k;ky; dh iwoZ vuqefr ds fcuk N-x- jkT; ls ckgj ugha tk;saxs is set aside.