SUDEEP CHATTERJEEversusSTATE OF BIHAR & ANR.

                  [2024] 8 S.C.R. 662 : 2024 INSC 567

                            Sudeep Chatterjee
                                     v.
                           State of Bihar & Anr.
                    (Criminal Appeal No. 3210 of 2024)
                                02 August 2024
           [Prashant Kumar Mishra and C.T. Ravikumar,* JJ.]

                           Issue for Consideration
       Whether the High Court erred by putting onerous conditions on
       accused-appellant while granting provisional pre-arrest bail.

                                  Headnotes†
       Code of Criminal Procedure, 1973 – s.438 – Whether the
       High Court erred by putting onerous conditions on accused-
       appellant while granting provisional pre-arrest bail:
       Held: Courts have to be very cautious in imposing conditions
       while granting bail upon finding pre-arrest bail to be grantable –
       Conditions should be put warily, especially when the couple
       concerned who are litigating in divorce proceedings, jointly though
       lukewarmly, agreed to attempt to reconcile and re-unite – When the
       couple who are trying to bridge their emotional differences putting
       one among them under such an onerous condition would deprive a
       dignified life not only to the grantee but to both – The need to put
       compliable conditions while granting bail, recognizing the human
       right to live with dignity and with a view to secure the presence of
       the accused as also unhindered course of investigation, ultimately
       to ensure a fair trial – Conditions provided in the impugned order
       for the release of the appellant on the provisional bail cannot be
       sustained – The order granting the bail is made absolute and
       the appellant in the event of his arrest be released on bail –
       ‘Lex non cogit ad impossibilia’ means ‘the law does not compel
       a man to do what he cannot possibly perform’ – The impugned
       order stands set aside to the extent of putting onerous condition
       on pre-arrest bail. [Paras 8, 9, 10]
       Bail – Marital dispute – Whether the conditions imposed on
       husband while granting provisional bail would ultimately
       benefit the couple going through a marital dispute:


* Author
[2024] 8 S.C.R.                                                          663

                Sudeep Chatterjee v. State of Bihar & Anr.


     Held: Putting conditions as has been done in this case, requiring
     a person to give an affidavit carrying a specific statement in the
     form of an undertaking that he would fulfill all physical as well
     as financial requirements of the other spouse so that she could
     lead a dignified life without interference of any of the family
     members of the appellant, can only be described as an absolutely
     improbable and impracticable condition – Such conditions will
     only be counterproductive as it makes one spouse dominant over
     the other – In respect of matters relating to matrimonial cases,
     conditions shall be put in such a way to make the grantee of the
     bail as also the griever to regain the lost love and affection and
     to come back to peaceful domesticity. [Paras 7, 8, 9]

                             Case Law Cited
     Shri Gurbakash Singh Sibbia & Ors. v. State of Punjab [1980] 3
     SCR 383 : (1980) 2 SCC 565; Parvez Noordin Lokhandwalla v.
     State of Maharashtra & Anr. [2020] 11 SCR 117 : (2020) 10 SCC
     77 – referred to.

                               List of Acts
     Code of Criminal Procedure, 1973.

                            List of Keywords
     Onerous condition on pre-arrest bail; Matrimonial disputes; Lex
     non cogit ad impossibilia.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3210
     of 2024
     From the Judgment and Order dated 30.08.2023 of the High Court
     of Judicature at Patna in CRLM No. 57492 of 2023.
                        Appearances for Parties
     Nitish Banka, Lakshay Manchanda, Aadesh Punjabi, Sunny Sharma,
     Chetna Mourya, Ms. Kiritika Singh, Lokesh Baimad, Dr. Ram Kishor
     Choudhary, Chand Qureshi, Advs. for the Appellant.
     Anshul Narayan, Addl. Standing Counsel, Prem Prakash, Divyanshu
     Kumar Srivastava, Karan Verma, Ashwini Kumar, Advs. for the
     Respondents.
664                                                             [2024] 8 S.C.R.

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                  Judgment / Order of the Supreme Court

                                   Judgment
       C.T. Ravikumar, J.
       Leave granted.
1.     ‘Lex non cogit ad impossibilia’ means ‘the law does not compel a
       man to do what he cannot possibly perform’. The said maxim is
       being followed as an adage and with alacrity. We are constrained to
       refer to the said maxim on being pained to see that despite a catena
       of decisions deprecating the practice of putting onerous conditions
       for pre-arrest bail such orders are being passed without giving due
       regard to the binding precedents.
2.     The case on hand arises from an order dated 30.08.2023 passed
       by the High Court of Judicature at Patna in Criminal Miscellaneous
       No.57492 of 2023 whereby and whereunder the High Court granted
       provisional pre-arrest bail in Complaint Case No.1100 of 2021
       registered against the appellant herein, alleging commission of
       offences punishable under Section 498A of the Indian Penal Code,
       1860 (for short ‘the IPC’) and Section 4 of the Dowry Prohibition
       Act, 1961.
3.     Heard the learned counsel appearing for the appellant, learned
       counsel appearing for the State and also the learned counsel
       appearing for the second respondent. The second respondent filed
       reply affidavit and resisted the prayer for interfering with the conditions
       put in the impugned order. The counsel for the State endorsed the
       view and contentions raised on behalf of the second respondent.
4.     Complaint Case No.1100 of 2021, produced in this proceeding as
       Annexure P-1, would reveal that distrust and discordancy among the
       couple viz., the appellant and the second respondent led to disputes
       and then divorceable situation. In fact, the appellant moved a petition
       for dissolution of their marriage before the Court of learned Principal
       Judge, Family Court, Bhagalpur. Complaint Case No.1100 of 2021 has
       been filed by the second respondent-wife alleging commission of the
       aforesaid offences against the appellant. Earlier, in connection with
       the aforesaid Complaint Case, the appellant moved an application
       for pre-arrest bail before the Court of Sessions Judge, Katihar. On
[2024] 8 S.C.R.                                                               665

                    Sudeep Chatterjee v. State of Bihar & Anr.


      its dismissal vide order dated 24.05.2023, the above-mentioned
      application for an anticipatory bail was moved before the High Court
      which culminated in the impugned order. The relevant paragraphs in
      the impugned order that compelled us to make the opening remarks
      read thus: -
             “6. Considering the desire of the parties, both the parties
             are directed to file a joint affidavit before the Court below
             to the effect that the parties have agreed to live together
             and petitioner must give specific statement in the said joint
             affidavit that he undertakes to fulfill all physical as well as
             financial requirement of the complainant so that she can
             lead a dignified life without any interference of any of the
             family members of the petitioner.
             7. If such affidavit is filed within a period of four weeks,
             petitioner, above named, is directed to be released on
             Provisional Bail, in the event of his arrest or surrender
             before the Court below within a period of four weeks
             from today, on furnishing bail bond of Rs. 10,000/- (Ten
             Thousand) each with two sureties of the like amount each
             to the satisfaction of learned C.J.M, Katihar in connection
             with Complaint Case No.1100 of 2021, subject to the
             condition as laid down under Section 438(2) of the Cr.P.C.
             8. It is made clear that Provisional bail shall continue till
             four weeks from the date of passing of this order to enable
             him to file joint affidavit along with withdrawal order of the
             divorce case.”
5.    Before scanning the conditions as mentioned above, we think it
      appropriate to refer to some of the relevant decisions of this Court,
      in the contextual situation. A Constitution Bench of this Court in Shri
      Gurbakash Singh Sibbia & Ors. v. State of Punjab 1 held thus: -
             “26. 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



1    [1980] 3 SCR 383 : (1980) 2 SCC 565
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             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 [Maneka Gandhi v. Union of India, (1978)
             1 SCC 248], 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 to be found therein.”
                                                    (emphasis supplied)
6.     In Parvez Noordin Lokhandwalla v. State of Maharashtra & Anr.2
       this Court held: -
             “…The human right to dignity and the protection of
             constitutional safeguards should not become illusory by
             the imposition of conditions which are disproportionate
             to the need to secure the presence of the accused, the
             proper course of investigation and eventually to ensure a
             fair trial. The conditions which are imposed by the court



2    [2020] 11 SCR 117 : (2020) 10 SCC 77
[2024] 8 S.C.R.                                                          667

                Sudeep Chatterjee v. State of Bihar & Anr.


           must bear a proportional relationship to the purpose of
           imposing the conditions. The nature of the risk which is
           posed by the grant of permission as sought in this case
           must be carefully evaluated in each case.”
7.   We do not think it necessary to burden this judgment by multiplying
     the authorities on this subject as the constant and consistent view of
     this Court on matters granting a prayer for bail under Section 438 of
     the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) is that
     after forming an opinion, taking note of all relevant aspects, that bail
     is grantable, conditions shall not be put to make it impossible and
     impracticable for the grantee to comply with. As held by this Court
     in Parvez Noordin’s case (supra), the ultimate purpose of putting
     conditions while granting pre-arrest bail is to secure the presence
     of the accused and thus, eventually to ensure a fair trial and also
     for the smooth flow of the investigating process.
8.   In view of the unfortunate instances imposing very onerous conditions,
     especially in cases which are nothing but an off-shoot of matrimonial
     discordance, we would reiterate the view that courts have to be very
     cautious in imposing conditions while granting bail upon finding pre-
     arrest bail to be grantable. This is to be done warily, especially when
     the couple concerned who are litigating in divorce proceedings, jointly
     though lukewarmly, agreed to attempt to reconcile and re-unite. The
     impugned order itself would reveal that the parties who were about
     to part company, rethought and expressed their readiness to bury
     the hatchet and to re-unite and the appellant has also agreed to
     withdraw the divorce case. One should not be oblivious of the fact
     that a boy or girl, will be bonded to kith and kins besides parents and
     siblings and such bonded relationships cannot be severed solely due
     to affine and affinity towards the affinal as also cognate relationships
     has to be taken forward with same cordialness. Relation through
     marriage sans support from both the families may not flourish but
     may perish. Viewed from any angle, putting conditions as has been
     done in this case, requiring a person to give an affidavit carrying a
     specific statement in the form of an undertaking that he would fulfil all
     physical as well as financial requirements of the other spouse so that
     she could lead a dignified life without interference of any of the family
     members of the appellant, can only be described as an absolutely
     improbable and impracticable condition. The second respondent may
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       not misuse such a condition. However, giving such a carte blanche,
       is nothing but making one dominant over the other, which in no way
       act as a catalyst to create a comely situation in domesticity. On the
       contrary, such conditions will only be counter-productive. There can
       be no doubt that a re-union after a marital discord is possible only
       if the parties are put to a conducive situation to regain the mutual
       respect, mutual love and affection. No doubt putting a condition that
       one of the parties should undertake to fulfil all physical as well as
       financial requirements of the other party could not bring about such
       a situation. It may compel one among the couple to be susceptive
       and turn the other supercilious. When the couple who are trying to
       bridge their emotional differences putting one among them under
       such an onerous condition would deprive a dignified life not only to
       the grantee but to both. It is to be noted that with the said conditions
       the appellant was granted only a provisional bail. In short, we stress
       upon the need to put compliable conditions while granting bail,
       recognizing the human right to live with dignity and with a view to
       secure the presence of the accused as also unhindered course of
       investigation, ultimately to ensure a fair trial. In respect of matters
       relating to matrimonial cases, conditions shall be put in such a way
       to make the grantee of the bail as also the griever to regain the lost
       love and affection and to come back to peaceful domesticity. In this
       case, the parties, obviously, expressed their desire and willingness
       to live together and in that regard the appellant-husband, expressed
       his willingness to withdraw the divorce case.
9.     The above discussions tend us to hold that the conditions as
       mentioned above contained in paragraph 6 of the impugned order
       for the release of the appellant on the provisional bail cannot be
       sustained and as such the said conditions to give undertaking that the
       appellant would fulfil all physical and financial requirements by way
       of an affidavit are set aside. However, this shall not be understood
       to have an order releasing both of their marital obligations and
       duties and we hope and trust that the couple will continue to strive
       to restore their domesticity.
10. The order granting the bail is made absolute and the appellant in
    the event of his arrest be released on bail subject to the same terms
    stipulated by the High Court under the impugned order regarding
    suretyship as also the liability to comply with conditions as laid down
[2024] 8 S.C.R.                                                           669

                   Sudeep Chatterjee v. State of Bihar & Anr.


     under Section 438(2), Cr. P.C. Needless to say, that this will further
     be subject to the final outcome of the pending complaint case. The
     impugned order stands set aside only to the aforesaid extent and
     accordingly, the appeal stands disposed of.
11. Pending application(s), if any, stands disposed of.

     Result of the case: Appeal disposed of.



     †
         Headnotes prepared by: Gaurav Upadhyay, Hony. Associate Editor
                                 (Verified by: Shadan Farasat, Adv.)