Holding

A court cannot impose a maintenance condition while granting anticipatory bail; such a condition is beyond the jurisdiction conferred by section 438 of the CrPC.

Summary

The wife of Munish Bhasin filed a complaint under IPC sections 498A, 406 and 34 alleging cruelty and misappropriation of dowry. The husband and his parents applied for anticipatory bail under CrPC section 438, which the Delhi High Court granted but conditioned on the husband paying Rs.12,500 per month as maintenance to his wife and child, along with arrears of Rs.3,00,000. The Supreme Court examined whether such a maintenance condition could be imposed while granting anticipatory bail. It held that the power to impose conditions under section 438 is limited to those enumerated in s.438(2) and s.437(3) and does not extend to awarding maintenance, which must be decided in a separate proceeding under section 125 of the CrPC. Consequently, the maintenance condition was set aside while the rest of the bail order was upheld. The appeal was allowed, clarifying the scope of conditions permissible in anticipatory bail.

Issues considered

Whether a court can impose a maintenance condition on an accused while granting anticipatory bail under CrPC section 438.

Legislation cited

Code of Criminal Procedure, 1973s. 125, s. 437, s. 438
Indian Penal Code, 1860s. 34, s. 406, s. 498A

Subjects

anticipatory bailsection 438maintenancesection 125jurisdictionconditionscriminal proceduremarital dispute

Judgment

[2009] 2 S.C.R. 806

A MUNISH BHASIN & ORS. -.,--~-

v.
STATE (GOVT. OF N.C.T. OF DELHI) & ANR.

•
l..-

Criminal Appeal No. 344 of 2009

B
FEBRUARY 20, 2009
~
r
[RV. RAVEENDRAN AND J.M. PANCHAL, JJ.]
Code of Criminal Procedure, 1973 :
-t
...
s. 438 - Anticipatory bail - Grant of - Complaint by wife
c u/s. 498A and s.406 rlw s.34 /PC against husband and his
parents - Application for anticipatory bail - Grant of, by High
Court, directing the husband to pay maintenance (both past
and future) to his wife and child - Justification of - Held: Not
justified - High Court or Sessions court cannot impose
freakish conditions - It can impose conditions stated in s. 438 ~
D
(2) and 437(3) - Any other condition would be beyond ,,...I
jurisdiction of the power conferred u/s. 438 - Thus, direction
~
issued requiring the husband to pay maintenance (both past
and future) to his wife and child set aside. L
E The question which arose for consideration in this
appeal was whether High Court was justified in imposing
condition requiring the appellant to pay a sum of Rs. Il
I-
12,500/- as maintenance (both past and future) to his wife ), I

and child while granting anticipatory bail to him and his ""
F parents with reference to the complaint filed by his wife
for alleged commission of offences punishable under ss.
498A and 406 read with s. 34 IPC.
f
Disposing of the appeal, the Court

G HELD: 1. While exercising discretion to release an
accused under Section 438 of the, Code of Criminal
Procedure, 1973 neither the High Court nor the Session
~.
,.,..
'
Court would. be justified in imposing freakish conditions.
The Court having regard to the facts and circumstances
H 806
MUNISH BHASIN & ORS. V. STATE (GOVT. OF 807
N.C.T. OF DELHI) & ANR.

of the case can impose necessary, just and efficacious A
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. The
conditions which can be imposed by the Court while
granting anticipatory bail are enumerated in sub-section B
(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 C
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 D
beyond jurisdiction of the power conferred on Court
under section 438 of the Code. While imposing conditions
on an accused who approaches the Court under section
438 of the Code, the Court should be extremely chary in
imposing conditions and should not transgress its E
jurisdiction or power by imposing the conditions which
are not called for at all. 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. [Para 8] F
[811-E; 812-A]
2. In the instant case, when the High Court had found
that a case for grant of bail under section 438 was made
out, it was not open to the Court to direct the appellant to
pay Rs. 3,00,000/- for past maintenance and a sum of G
Rs.12,500/- per month as future maintenance to his wife
and child. In a proceeding under section 438 of the Code,
the Court would not be justified in awarding maintenance
to the wife and child. The case of the appellant is that his
wife is employed and receiving a handsome salary and H
808 SUPREME COURT REPORTS [2009] 2 S.C.R.

A therefore is not entitled to maintenance. Normally, the y---

question of grant of maintenance should be left to be
decided by the competent Court in an appropriate
proceedings where the parties can adduce evidence in
support of their respective case, after which liability of
B husband to pay maintenance could be determined and
appropriate order would be passed directing the husband
to pay amount of maintenance to his wife. The record of
the instant case indicates that the wife of the appellant
..
'
~
has already approached appropriate Court for grant of
c maintenance and therefore the High Court should have
refrained from granting maintenance to the wife and child
of the appellant while exercising powers under section
438 of the Code. The condition imposed by the High Court
directing the appellant to pay a sum of Rs.12,500/- per
month as maintenance (both past and future) to his wife -;t.._
D
and child is onerous, unwarranted and is set aside. Rest ~

of the directions contained in the said order are
maintained. [Paras 8 and 9) [812-D; 813-A; 813-B]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
E No. 344 of 2009
From the Judgement and Order dated 07.08.2007 of the
High Court of Delhi in Bail Appln. No. 423 of 07.
Kiran Suri, for the Appleant.
~
.
F Madhumita Bhattacharjee, for the Respon.dent.
The Judgement of the Court was delivered by
J.M. PANCHAL, J.

G 1. Leave granted. The complainant (wife of first appellant)
to whom notice was ordered on 25.01.2008 is impleaded as ~
"°-'\
second respondent.
2. Heard Counsel.
3. The appellant (accused no. 1) assails the condition
H
MUNISH BHASIN & ORS. V STA.TE (GOVT. OF 809
N.C.T OF DELHI) & ANR. [J.M. PANCHAL, J.]

~..- imposed by the High Court requiring him to pay a sum of A
Rs.12,500/- as maintenance to his wife and child while granting
anticipatory bail to him and his parents with reference to the
complaint filed by his wife for alleged commission of offences
punishable under Sections 498A and 406 read with Section 34
of the Indian Penal Code. B
4. The marriage of the appellant was solemnized with Ms.
... Renuka on December 05, 2004. She has filed a complaint in
t- November 2006, against the appellant and his parents for
alleged commission of offences punishable under Sections
498A and 406 read with Section 34 of the Penal Code on the c
grounds that after marriage she was subjected to mental and
physical cruelty for bringing less dowry and that her stri-dhan
entrusted to them has been dishonestly misappropriated by
them.
,..,
D
5. Apprehending arrest, the appellant and his parents
moved High Court of Delhi for anticipatory bail. The application
came up for consideration before a Learned Single Judge of
the High Court on 22.02.2007. The Learned Additional Public
Prosecutor accepted notice and submitted that the matter was
essentially a matrimonial dispute and therefore the parties E
should be referred to the Mediation and Conciliation Cell of the

.. Delhi High Court. The Learned Judge agreed with the
suggestion made by the Additional Public Prosecutor and
directed the parties to appear before the Mediation and
Conciliation Cell of the Delhi High Court on March 02, 2007. F
The case was ordered to be listed on 10.05.2007. The Learned
Judge further directed that in the event of arrest of the appellant
and his parents, before the next date of hearing, they shall be
released on bail on their furnishing'•f:>ersonal bond in the sum of
Rs.25,000/- each with one surety of like amount to the G
~- satisfaction of the Investigating Officer/ Arresting Officer
/
concerned, subject however, to the condition that the appellant
and his parents shall surrender their passports to the
Investigating Officer and shall file affidavits in the Court that they
would not leave the country without prior permission of the Court. H
810 SUPREME COURT REPORTS [2009) 2 S.C.R.

A 6. From the records, it appears that the conciliation "[~

proceedings failed and therefore the bail application was taken
up for hearing on merits. On representation made by the wife of
the appellant, the counsel of the appellant was directed to
produce appellant's salary slip. Accordingly, the salary slip of
B the appellant was produced before the Court which indicated
that the appellant was drawing gross salary of Rs.41,598/- and
after deductions of advance tax etc., his net salary was .,,,,
Rs.33,000/-. The Learned Single Judge of the High Court took
the notice of the fact that the appellant had the duty to maintain "'
c his wife and the child and therefore as a condition for grant of
anticipatory bail, directed the appellant, by the order dated
07 .08.2007 to pay a sum of Rs.12,500/- per month by way of
mainte1_1ance to his wife and child. The Learned Single Judge
also directed to pay arrears at the rateuf Rs. 12,500/- per month
from August 2005, that is Rs. 3,00,000/- within six months. The
D
imposition of these conditions for grant of anticipatory bail is "
the subject matter of challenge in the instant appeal.
7. From the perusal of the provisions of sub-section (2) of
section 438, it is evident that when the High Court or the Court
E of Session makes a direction under sub-section (1) to release
an accused alleged to have committed non-bailable offence,
the Court may include such conditions in such direction in the
light of the facts of the particular case, as it may think fit, including >
(i) a condition that a person shall make himself available for
F interrogation by 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
G
permission of the Court and (iv) such other conditions as may
be imposed under sub-section (3) of section 437, as if the bail
..{.
"..,.
were granted under that section. Sub-section (3) of Section 437,
inter alia, provides that when a person accused or suspected
of the commission of an offence punishable with imprisonment
H
·,

MUNISH BHASIN & ORS. V. STATE (GOVT. OF 811
N.C.T. OF DELHI) & ANR. [J.M. PANCHAL, J.]
'( which may extend to seven years or more or of an offence under A
Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal
Code .or abetment of, or conspiracy or attempt to commit, any
suchpffence, is released on bail under sub-section (1 ), the Court
shalUmpose the following conditions-
(a) that such person shall attend in accordance with the B
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
(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. D
The Court may also impose, in the interests of justice,
such other conditions as it considers necessary.
8. It is well settled that while exercising discretion to release
an accused under Section 438 of the Code neither the High E
Court nor the Session 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. F
However, the accused cannot be subjected to any irrelevant
condition at all. 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
G
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
H
812 SUPREME COURT REPORTS [2009]2 S.C.R;

A 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. While imposing conditions on an accused who
B approaches the Court under section 438 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. Th.ere is no manner of
doubt that the conditions to be imposed under section 438 of
c 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. In the instant case; the question before the
Court was whether having regard to the averments made by
Ms. Renuka in her complaint, the appellant and his parents were
entitled to bail under section 438 of the Code. When the High
D
Court had found that a case for grant of bail under section 438
was made out, it was not open to the Court to direct the appellant
to pay Rs. 3,00,000/- for past maintenance and a sum of
Rs.12,500/- per month as future maintenance to his wife and
child. In a proceeding under section 438 of the Code, the Court
E would not be justified in awarding maintenance to the wife and
child. The case of the appellant is that his wife Renuka is
~'
employed and receiving a handsome salary and therefore is
r,
not entitled to maintenance. Normally, the question of grant of t
..·r
maintenance should be left to be decided by the competent
F Court in an appropriate proceedings where the parties can
adduce evidence in support of their respective case, after which
liability of husband to pay maintenance could be determined
and appropriate order would be passed directing the husband
to pay amount of maintenance to his wife. The record of the
G instant case indicates that the wife of the appellant has already
approached appropriate Court for grant of maintenance and .lo.
~-
therefore the High Court should have refrained from granting ·.•l
maintenance to the wife and child of the appellant while
exercising powers under section 438 of the Code. The condition
H imposed by the High court directing the appellant to pay a sum
MUNISH BHASIN & ORS. V. STATE (GOVT. OF 813
N.C.T. OF DELHI) & ANR. [J.M. PANCHAL, J.]

_,. ..t of Rs.12,500/- per month as maintenance to his wife and child A
is onerous, unwarranted and is liable to be set aside.
9. For the foregoing reasons, the appeal succeeds. The
direction contained in order dated August 07, 2007 rendered
by Learned Single Judge of Delhi High Court in Bail Application
No. 423 of 2007 requiring the appellant to pay a sum of 8
Rs.12,500/- per month by way of maintenance (both past and
future) to his wife and child is hereby deleted. Rest of the
directions contained in the said order are maintained. It is
however clarified that any amount received by the wife of the
appellant pursuant to the order of the High Court need not be C
refunded by her to the appellant and will be adjusted subject to
the result of application for maintenance filed by wife of the
appellant under Section 125 of the Code before the appropriate
Court.
10. The Appeal is accordingly disposed of.

N.J. Appeal disposed of.