Can The Court Order Deposit Of Cash As A Condition Precedent For Granting Anticipatory Bail?

In a recent Judgment, the High Court of Kerala, while jointly hearing four petitions filed by the same petitioner observed that although the deposit of cash as a condition for granting anticipatory bail under section 438(2) is allowed, such discretion must be used with absolute restraint and the amount deposited must not be excessive or onerous. The petitioner in the instant case had been accused of committing an offence punishable under Section 420 of the Indian Penal Code. It had been alleged that she had obtained a huge amount of money from four persons for the purposes of business and also on the promise that she would arrange visa for their close relatives, but she neither arranged any visa nor returned the money, thereby committing the offence of cheating. The petitioner filed four applications under Section 438 of the Code of Criminal Procedure, before the Sessions Court at Alappuzha, for granting anticipatory bail to her in these cases. Therein, the Sessions Judge allowed the applications on certain conditions one of the which was that the petitioner shall deposit Rs.25,000/- each in the four cases, before execution of the bail bond. Thereafter petitioner had applied to the Sessions Court for deletion or modification of such condition relating to deposit of cash. However, since the same was dismissed, the petitioner had approached the High Court for setting aside such condition imposed by the Sessions Court. During the proceedings before the High Court, the counsel for the petitioner submitted that the petitioner had no income and no funds with her to comply with the condition regarding deposit ofcash. It was further contended that the direction to deposit Rs.25, 000/- each in the four cases, was illegal and at any rate, amounted to an onerous and unreasonable condition. The Public Prosecutor on the other hand contended that since the petitioner had obtained a huge amount of money from the four persons and misappropriated it, the Sessions Judge was perfectly justified in issuing such a direction. Section 438(2) of the Code states:"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…." The issue for consideration before the Court was whether it was legal and proper to issue a direction for deposit of cash by a person, while exercising the power under section 438(1) read with section 438(2) of the Cr.P.C as a condition for granting him anticipatory bail. Justice R. Naryana Pisharadi of the Kerala High Court observed that under the aforesaid provision a Court is empowered to impose appropriate conditions to avoid possibility of person hampering the investigation of the case. However, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under law and the discretion of the court must be exercised with utmost restraint since there is no absolute power to impose 'any condition' that it chooses. Referring to a number of cases, the High Court stated that the principle that although normally no direction for deposit of cash by the accused as a condition for granting him bail shall be made, exceptions are there. Referring further to the observations of the Apex Court in Sumit Mehta v State (2013) 15 SCC 570 the Court stated that imposing such a condition for granting anticipatory bail is allowed in cases of cheating, financial frauds, white-collar crimes etc and hence is not impermissible by law. However, the court has to take care that, the amount ordered to be deposited in such cases, is not highly excessive or onerous and does not amount to virtually denying the accused the benefit of bail. With regards to the facts of the case, the Court observed that it could not come to a conclusion on whether the allegation was true since mere failure of the petitioner to repay the money borrowed for business purposes would not attract cheating and there had been undue delay in reporting the matter to the police.Thus in view of the facts and circumstances of the case, the Court concluded that the Sessions Judge was not justified in making such a direction as a condition for granting her anticipatory bail. Allowing the petitions, the Court set aside the order for cash deposit, and retained the order for the grant of anticipatory bail.What the Supreme Court SaidIn Sumit Mehta v State (2013) 15 SCC 570 Supreme Court held that while exercising power under Section 438 of the Code, the Court is duty bound to strike a balance between the individual's 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...

Can The Court Order Deposit Of Cash As A Condition Precedent For Granting Anticipatory Bail?

Shreyasi Bhattacharya

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