SUMIT MEHTAversusSTATE OF N.C.T. OF DELHI

                     [2013] 10 S.C.R. 125


                        SUMIT MEHTA                                  A
                                v.
                 STATE OF N.C.T. OF DELHI
             (Criminal Appeal No. 1436 of 2013)
                   SEPTEMBER 13, 2013
                                                                     B
    [P. SATHASIVAM, CJI AND RANJANA PRAKASH
                     DESAI, J.]

     Code of Criminal Procedure, 1973:
                                                                     c
     s.438 - Power under - Purpose and scope of - FIR u/s.
420, 467, 468 and 471 /PC - Anticipatory bail granted on the
condition that the accused would deposit Rs. one crore in fixed
deposit in the name of the complainant - Propriety of the
condition - Held: Object of putting conditions while granting        0
bail, is to avoid 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 law - Therefore,
condition of deposit for grant of anticipatory bail is untenable     E
- Accused, presumably an innocent person, entitled to right
to liberty under Article 21 of the Constitution - Direction to
deposit FDR set aside - Condition imposed on the accused
to make himself available to police not to hamper with
investigation and not to leave India without previous
permission of Court- Constitution of India, 1950 -Article 21.        F
     s.438 - Anticipatory bail - Grant of - Parameters for -
Discussed.

    The question for consideration in the present appeal             G
was whether the condition of depositing an amount of
Rs. 1,00,00,0001- in fixed deposit for anticipatory bail was
sustainable in law and Whether such condition is outside
the purview of Section 438 Cr.P.C.
                               125                                   H

                                                                         •
    126       SUPREME COURT REPORTS             [2013] 10 S.C.R.


A         Disposing of the appeal, the Court

         HELD: 1. The purpose of the provision in s.438
    Cr.P.C. is that a person should not be harassed or
    humiliated in order to satisfy the grudge or personal
8 vendetta of the complainant. The grant of bail under
    Section 438(1) is dependent on the merits and
    circumstances of a case. While granting anticipatory bail,
    the Courts are expected to consider and keep in mind the
    nature and gravity of accusation, anteeedents of the
    applicant, namely, about his previot.1$ involvement in
C such offence and the possibility of the applicant to flee
    from justice. It is also the duty of the Court to ascertain
  . whether accusation has been made with the object of
    injuring or humiliating him by having him so arrested. The
    Courts are duty bound to impose appropriate conditions
D as provided under sub-section (2) of Section 438 Cr.P.C.
    [Paras 8 and 14] [132-D; 134-F·G]

          Shri Gurbaksh Singh Sibbia and Ors. vs. State of Punjab
    (1980) 2 sec 565: 1980 (3) SCR 383 - relied on.
E
       2.1. While exercising power under Section 438
  Cr.P.C., 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
F 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
G 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 with utmost restraint. The law presumes an
  accused to be innocent till his guilt is proved. As a
H presumably innocent person, he is entitled to all the
   SUMIT MEHTA v. STATE OF N.C.T. OF DELHI              127


fundamental ri9hts including the right to liberty              A
guaranteed under Article 21 of the Constitution. [Paras 12
and 13) [134-B-F]

     2.2. The words "any condition" used in the provision
should not be regarded as conferring absolute power on         8
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. [Para 16)    C
[135-C-D]

    2.3. Therefore, fixed deposit of Rs. 1,00,00,000/- for a
period of six months in the name of the complainant and
to keep the FDR with the investigating officer as a
condition precedent for grant of anticipatory bail is          D
evidently onerous and unreasonable. [Paras 15] [134-H;
135-A-B]

     Amarjit Singh vs. State of NCT of Delhi (2009) 13 SCC
769; Sheikh Ayub vs. State of M.P. (2004) 13 SCC 457; I.
                                                               E
Glaskasden Grace and Ors. vs. Inspector of Police and Anr.
(2009) 12 SCC 769; 2009 (3) SCR 990; Ramathal and Ors.
vs. Inspector of Police and Anr. (2009) 12 SCC 721: 2009
(3) SCR 981 Sandeep Jain vs. National Capital Territory of
Delhi Rep. by Secretary,· Home Deptt. (2000) 2 SCC 66 -
relied on.
                                                               F

     3. Setting aside the direction relating to deposit of
FDR in the name of the complainant, the appellant-
accused is directed to fulfill the following conditions i.e.
the appellant shall make himself available for                 G
interrogation by a police officer as and when required;
the appellant 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;   H
    128      SUPREME COURT REPORTS             [2013] 10 S.C.R.


A the appellant shall furnish his address to t11~ Investigating
  Officer who shall verify it and submit it to the trial Court
  under his signature. In case of change of address, it must
  be communicated to the Investigating Officer who shall
  verify it and intimate the same to the court concerned
B under his signature; and the appellant shall not leave
  India without the previous permission of the trial Court.
  [Para 17] [135-E-H; 136-A-C]

                         Case Law Reference:

c         1980 (3) SCR 383        relied on            Para 9
          (2009) 13 sec 769       relied on            Para 10.
          (2004) 13 sec 457       relied on            Para 11
          2009 (3) SCR 990        relied on            Para 11
D         2009 (3) SCR 981        relied on            Para 11
          (2000) 2 sec 66         relied on            Para 11
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1436 of 2013.
E
        From the Judgment & Order dated 18.12.2012 of the High
    Court of Delhi at New Delhi in Bail Application No. 1479 of
    2012.
        K.V. Vishwanathan, ASG, Aman Lekhi, Jayant Kumar
F   Mehta, Shailender Saini, Satya Sidiqui, D.S. Mahra, B. Vijay
    Kumar for the appearing parties.
          The Judgment of the Court was delivered by

          P. SATHASIVAM, CJI. 1. Leave granted.
G
       2. This appeal is directed against the order dated
  18.12.2012 passed by the High Court of Delhi at New Delhi in
  Bail Application No. 1479 of 2012 whereby learned single
  Judge of the High Court while granting anticipatory bail to the
H appellant herein in a case registered against him vide FIR No.
      SUMIT MEHTA v. STATE OF N.C.T. OF DELHI                      129
               [P. SATHASIVAM, CJI.]
 104 dated 22.08.2012 for the offences punishable under                    A
 Sections 420, 467, 468 and 471 of the Indian Penal Code,
 1860 (hereinafter referred to as "IPC") directed him to deposit
 an amount of Rs.1,00,00,000/- (one crore) in fixed deposit in
 the name of the complainant in any nationalized bank and to
 keep the FDR with the Investigating Officer.                              B

        3. According to learned senior counsel for the appellant,
  the condition for depositing the amount in fixed deposit in the
  impugned order is untenable in le1w and is outside the purview
  of Section 438 of the Code of Criminal Procedure, 1973 (in
  short "the Code"). He further pointed out that learned single            C
  Judge, while imposing the condition for depositing the amount
  in fixed deposit, has failed· to appreciate that the liberty for grant
. of anticipatory bail under Section 438 of the Code cannot be
  used for recovery of the alleged cheated amount to the
  complainant. He further pointed out that while passing the               D
  impugned order, learned single Judge failed to consider that
  imposing a condition of depositing ah amount of Rs. 1 crore
  in fixed deposit would make the grant of anticipatory bail
  impossible for the appellant. He also pointed out that the said
  direction is contrary to Article 21 of the Constitution of India and     E
  results in denial of liberty to the appellant.

      4. During the course of hearing, one Harnam Jaspal-the
 compl~inant, filed Criminal Misc. Petition 18718 of 2013 for
 intervention. Intervention application is allowed. Learned counsel        F
 appearing for the intervener, after highlighting the transaction
 between the intervener and the appellant-accused and various
 factual aspects, contended that the High Court is fully justified
 in imposing such condition and there is no need to interfere
 with the same.
                                                                           G
      5. On behalf of the respondent-State, learned Additional
 Solicitor General submitted that taking note of the dispute
 between the complainant and the appellant-accused, the
 condition imposed for grant pf anticipatory bail cannot be
 construed as onerous.                                                     H
    130            SUPREME COURT REPORTS               [2013] 10 S.C.R.


A       6. We have carefully considered the rival contentions and
    perused all the relevant materials.

         7. The only point for consideration in this appeal is whether
    the condition of depositing an amount of Rs. 1,00,00,000/- in
8   fixed deposit for anticipatory bail is sustainable in law and
    whether such condition is outside the purview of Section 438
    of the Codf;?

        8. In order to answer the above question, it is useful to refer
    Section 438 of the Code which reads as under:
c
          "438. Direction for grant of bail to person
          apprehending arrest:-

          (1) Where any person has reason to believe that he may
          be arrested on accusation of having committed a non-
D
          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 am3st he shall be released on bail; and
          that Court may, after taking into consideration, inter alia,
          the following factors, namely:-
E
           (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
F
                    of any cognizable offence;

           (iii)    the possibility of the applicant to flee from justice;
                    and

G          (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:
H
SUMIT MEHTA v. STATE OF N.C.T. OF DELHI                    131
         [P. SATHASIVAM, CJI.]
      Provided that, where the High Court or, as the case         A
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           B
such application.

      (1A) 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         C
order to be served on the Public Prosecutor 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                 D
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.                                       E

(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 thinks fit, including-
                                                                  F
(i) a condition that the persori 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 G
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   H
the previous permission of the Court;
    132       SUPREME COURT REPORTS                 [2013) 10 S.C.R.


A         (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,
B
          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 be
          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
c         warrant in conformity with the direction of the Court under
          sub- section (1)."

    A reading of the above provision makes it clear that a person
    should not be harassed or humiliated in order to satisfy the
o   grudge or personal vendetta of the complainant. The grant of
    bail under Section 438(1) of the Code is dependent on the
    merits and circumstances of a case.

       9. A Bench of five-Judges of this Court in Shri Gurbaksh
E Singh Sibbia & Ors. vs. State of Punjab (1980) 2 SCC 565,
  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:

                "26. We find a great deal of substance in Mr.
F         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
G         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
H         which he seeks bail. An over-generous infusion of
    SUMIT MEHTA v. STATE OF N.C.T. OF DELHI                 133
             [P. SATHASIVAM, CJI.]
     constraints and conditions which are not to be found in        A
     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         B
     after the decision in Maneka Gandhi [1978]2SCR621 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           c
     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."                                     D
     The aforesaid decision gives an abundant clarity as to the
intention and the scope of Section 438 of the Code. Certainly,
the power conferred must be exercised very sparingly and
judiciously. However, this Court has always frowned on onerous
condition being imposed as a condition precedent for granting       E
anticipatory bail.

   10. In Amarjit Singh vs. State of NCT of Delhi (2009) 13
SCC 769, this Court ruled as under:

           "7. Having regard to the facts and circumstances of      F
    the present case, we have no hesitation in coming to the
    conclusion that the imposition of condition to deposit the
    sum of Rs. 15 lacks in the form of FDR in the TTial Court
    is an unreasonable condition and, therefore, we set aside
    the said condition as a condition precedent for granting        G
    antic;ipatory bail to the accused/appellant."

     11. In Sheikh Ayub vs. State of M.P. (2004) 13 SCC 457,
it was held that a direction to pay a portion of the amount
misappropriated by the accused to the complainant as a              H
     134      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A condition for bail is unwarranted. Similar view was adopted by
  this Court in I. Glaskasden Grace and Ors. vs. Inspector of
  Police and Anr. (2009) 12 SCC 769, Ramathal and Ors. vs.
  Inspector of Police and Anr. (2009) 12 SCC 721 and Sandeep
  Jain vs. National Capital Territory of Delhi Rep. by Secretary,
B Home Deptt. (2000) 2 SCC 66.

       12. 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
C 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
D 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 with
  utmost restraint.

E           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.

F      14. We also clarify that while granting anticipatory bail, the
  Courts are expected to consider and keep in mind the nature
  and gravity of accusation, antecedents of the applicant, namely,
  about his previous involvement in such offence and the
  possibility of the applicant to flee from justice. It is also the duty
  of the Court to ascertain whether accusation has been made
G with the object of injuring or humiliating him by having him so
  arrested. It is needless to mention that the Courts are duty
  bound to irr.pose appropriate conditions as provided under sub-
  section (2) of Section 438 of the Code.

H          15. Thus, in the case on hand, fixed deposit of Rs.
     SUMIT MEHTA v. STATE OF N.C.T. OF DELHI                    135
              [P. SATHASIVAM, CJI.]

  1,00,00,000/- for a period of six months in the name of thE! A
. complainant and to keep the FDR with the investigating officer
  as a condition precedent for grant of anticipatory bail is ·
  evidently onerous and unreasonable. It must be remembered
  that the Court has not even come to the conclusion whether the
  allegations made are true or not which can only be ascertained · B
  after completion of trial. Certainly, in no words ·are we
  suggesting that the power to impose a condition of this nature
  is totally excluded, even in cases of cheating, electricity
  pilferage, white-collar crimes or chit fund scams etc.

      16. The words "any condition" used in the provision should
                                                                       c
 not be regarded as conferring absolute power on a Court of
 law to impose any condition that it chooses to impose. Any
 conditicm has to be interpreted as a reasonable condition
 acceptable in the facts permissible in the circumstance and           D
 effective in the pragmatic sense and should not defeat the order
 of grant of bail. We are of the view that the present facts and
 circumstances of the case do nc;>t warrant such extreme
 condition to be imposed.

       17. In the light of the above discussion, while retaining the   E
 order granting anticipatory bail in favour of the appellant-
 accused, namely, Sumit Mehta, we set aside the direction
 relating to deposit of FDR in the name of the complainant.
 However, the appellant-accused has to fulfill the following
 conditions:                                                           F

       (i)    The appellant shall make himself available for
              interrogation by a police officer as. and when ·
              required;

       (ii)   The appellant shall not directly or indirectly make      G
              any inducement, threat or promise to any person
              acquainted with the facts of th.e case so as to
              dissuade him from· disclosing such facts to the
              Court or to any police officer;
                                                                       H
    136       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A         (iii)   The appellant shall furnish his address to t~e
                  Investigating Officer who shall verify it and submit
                  it to the trial Court under his signature. In case of
                  change of address,_ it must be communicated to the
                  Investigating Officer who shall verify it and intimate
s                 the same to the court concerned under his
                  signature; and

           (iv)   The appellant shall not leave India without the
                  previous permission of the trial Court.

C         18. The appeal is disposed of with the above directions.

    K.K.T.                                       Appeal disposed of.