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Madhya Pradesh High Court · body

2014 DIGILAW 331 (MP)

Pawan Kumar Dhimaan v. State of M. P.

2014-03-24

VIMLA JAIN

body2014
Judgment: Vimla Jain, J. 1. This is first bail application filed by the applicants under Section 438 of the Cr. PC for grant of anticipatory bail. The applicants apprehend their arrest in connection with Crime No. 301/2013 registered at Police Station, Lakhanwada, District Seoni for the offences punishable under Sections 406/34 of the IPC. 2. The case of the prosecution is that the applicants, who are the employees of M/s. Sadbhav Engineering Limited had illegally lifted 2708.50 cubic meters of aggregate out of 6900 cubic meters of aggregate which was granted to them on Supurdnama by the Competent Court and by their such facts, the applicants had caused a loss of revenue to the State to the tune of Rs. 94,79,000/-. 3. Learned Counsel for the applicants submits that the applicants had filed applications for anticipatory bail bearing Nos. 12/2014 and 538/2013 before the Lower Court and the Lower Court had allowed both applications vide order dated 16-1-2014 and 30-12-2013 respectively. However, while allowing the aforesaid applications, the learned Lower Court had imposed a condition of depositing an FDR of Rs. 50 lakhs and surety of Rs. 1 lakh along with a bail bond of similar amount by each of the applicant. 4. He further submits that the conditions imposed by the Lower Court while granting the bail are improper, unreasonable and arbitrary. He prays to waive such conditions. In support of his submissions, he relies on judgment" dated 13-9-2013 passed by the Supreme Court in Criminal Appeal No. 14361/2013, Sumit Mehta Vs. State of NCT of Delhi. 5. On the other hand, learned Panel Lawyer of the State submits that looking to the gravity of offence, the learned Court below rightly imposed the conditions while granting anticipatory bail. 6. I have carefully considered the contentions raised by the learned Counsel for the parties and perused the case diary. 7. For ready reference, the Section 438 of the Code reads as under:-- 438. 6. I have carefully considered the contentions raised by the learned Counsel for the parties and perused the case diary. 7. For ready reference, the Section 438 of the Code reads as under:-- 438. Direction for grant of bail to person apprehending arrest.-- (1) Where 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; that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Persecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session 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 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 condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section. (3) 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, he shall he 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 sub-section (1) 8. On perusal of Section 438, it is clear that the conditions imposed in granting anticipatory bail should not be so harsh as to generate undue harassment to the applicants and the anticipatory bail should be granted or rejected on the merits and circumstances of each and every case. 9. In the matter of Baldev Raj Vs. State of Himachal Pradesh, (1980) 2 Supreme Court Cases 564, the Supreme Court while dealing mainly with the question of considerations that can validly weigh with the Courts while granting bail under Section 438 examined various facets of the issue and held as under:-- 46. We find a great deal of substance in Mr. State of Himachal Pradesh, (1980) 2 Supreme Court Cases 564, the Supreme Court while dealing mainly with the question of considerations that can validly weigh with the Courts while granting bail under Section 438 examined various facets of the issue and held as under:-- 46. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision, which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions, which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on, compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, (1978) 2 SCR 621 that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure, which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein. 10. The Supreme Court in the matter of Sumit Mehta Vs. State of NCT of Delhi (supra), in Paragraph 16 held that "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 circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail". 11. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail". 11. From the perusal of both the orders of the Court below, it appears that the conditions of depositing an amount of Rs. 50 lakhs in fixed deposit in each of the both cases are unreasonable, harsh and erroneous and defeat the very purpose of grant of anticipatory bail for the applicants. Such conditions will virtually result in denial of liberty to them. 12. In view of the aforesaid discussion, I set aside the direction relating to deposit of FDR for Rs. 50 lakhs in each order and maintain both the orders of granting anticipatory bail in favour of the applicants with the remaining conditions imposed thereby. The M.Cr.C. disposed of accordingly.