Mere Apprehension That Accused May Flee Can't Be Sole Factor For Denying Benefit Of S.445 CrPC: Delhi High Court

The Delhi High Court has held that a mere apprehension expressed by the prosecution that the accused may flee the course of justice, cannot be the sole determinative factor for denying benefit of Section 445 Code of Criminal Procedure.

Sec. 445 of CrPC states that "where any person is required by any Court or officer to execute a bond with or without sureties, the Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond."

Justice Anoop Kumar Mediratta thus granted relief to a woman and a foreign national, observing that she cannot be forced to undergo incarceration till the conclusion of trial merely because she was unable to furnish a local surety bond.

While dealing with an NDPS case, the Court noted that the matter did not involve the strict rigours or embargo stated under sec. 37 of the Act. Thus, it added that ends of justice can be suitably achieved by accepting the deposit of cash under sec. 445 of Cr.P.C. in lieu of surety bond.

The Court said that it would be a negation of the principle of rule of law and violative of constitutional mandate and principles of human rights in case benefit of sec. 445 Cr.P.C. is denied to a foreign national merely on the ground that a foreign national is likely to escape, if released on bail.

"This would lead to incarceration of accused for an unlimited period till conclusion of trial even despite being granted the discretion of bail by the courts. A mere apprehension expressed by the prosecution that the accused may flee the course of justice, cannot be the sole determinative factor for denying benefit of Section 445 Cr.P.C. without consideration of other circumstances and balancing factors in this regard. This apprehension may still theoretically persist even in a case where surety bond is furnished but the liability of surety is only to the extent of amount mentioned in the surety bond," the Court observed.

The Court was dealing with an application filed under sec. 445 read with sec. 482 Cr.P.C. for modification of an order dated 15.12.2021 in the bail plea and for direction to release the petitioner on furnishing of personal bond.

The petitioner was facing trial for possession of controlled substance arising out of an FIR registered under sec. 9A and 25A of the Narcotic Drugs And Psychotropic Substances Act, 1985.

The petitioner was directed to be released on bail on furnishing personal bond in the sum of Rs. one Lakh with two solvent sureties in the like amount. The said order was further modified for releasing her on personal bond for a sum of Rs. one Lakh with two sureties in the sum of Rs.50,000 each, since the petitioner was unable to furnish the surety bonds.

Further, since the petitioner could not arrange even the surety bonds at reduced amount and continued to remain in custody, the order was further modified vide directing her to be released on her furnishing personal bond in the sum of Rs. 50,000 with one surety in the like amount to the satisfaction of trial court.

It was thus submitted by counsel for the petitioner that the case was at the initial stage of prosecution and the petitioner was in custody since about two years and eight months. Further, the petitioner was unable to discharge her obligation of furnishing even reduced surety bond being a foreign national and had not been able to avail the benefit of bail despite repeated modifications by the Court.

It was also submitted on behalf of the petitioner that she had contacted Embassy of Zimbabwe multiple times but had not been able to obtain surety and she did not know anyone in the country, who could discharge the obligation of surety.

"I am of the considered opinion that vide order dated 14.09.2021, only prayer qua releasing the petitioner on personal bond was declined but the petitioner was allowed to furnish two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) each. The question of releasing the petitioner on deposit of cash in lieu of personal bond/surety bond was not considered, at that stage," the Court noted at the outset.

The Court observed that denying deposit of cash in lieu of surety in all such cases may become punitive effecting the bifocal interest of justice to the individual involved as well as the society.

"For the reasons detailed above and considering the facts and circumstances of the case as well as the fact that the petitioner is a woman/foreign national, who has been unable to avail the benefit of order on bail, she be released on bail on furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) and deposit of cash of Rs.50,000/- (Rupees Fifty Thousand Only) in lieu of surety bond to the learned trial court," the Court ordered.

The plea was accordingly disposed of.

Case Title: NASTOR FARIRAI ZISO v. NCB

Citation: 2022 LiveLaw (Del) 308

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