Don't Grant Bail In Private Cheating Cases Merely Because Accused Undertook To Deposit Money : Supreme Court Reminds Courts

The Apex Court reminded the High Courts and Sessions Courts not to be swayed by such considerations put forth by the counsels on behalf of the accused while moving an application under section 438, CrPC.

"It is considered appropriate to remind the high courts and the sessions courts not to be unduly swayed by submissions advanced by counsel on behalf of the accused in the nature of undertakings to keep in deposit/repay any amount while seeking bail under section 438 of the Cr. PC. and incorporating a condition in that behalf for deposit/payment as a pre-requisite for grant of bail", the Court observed.

The bench made these significant observations while considering an appeal filed against a pre-arrest bail condition imposed by the High Court. The appellant was named as accused in an FIR for cheating offence lodged over alleged defaults in a development agreement. The High Court granted bail subject to the condition of the appellant depositing 22 lakh with the trial court. The condition was imposed following an undertaking given by the appellant. However, the appellant could not meet the condition. Aggrieved by the refusal of the High Court to extend the time to fulfil the condition, the appellant moved the Supreme Court, challenging it as onerous. The State opposed the appeal by saying that the appellant volunteered to make the payment.

Legality of the condition

The Supreme Court referred to the landmark case of Gurbaksh Singh Sibbia v. State of Punjab in which it was held that “the courts should lean against the imposition of unnecessary restrictions on the scope of section 438 CrPC when no such restrictions have been imposed by the legislature.”

It referred to the precedents in Mahesh Chandra v. State of UP, Sumit Mehta v. NCT of Delhi, and Dilip Singh v State of MP which frowned upon onerous conditions imposed by Courts for bail.

The recent decision in Bimla Tiwari v. State of Bihar, the court reiterated the process of criminal law cannot be used for arm twisting and money recovery. 

Bail conditions cannot be onerous

In view of the settled law, the Court strongly disapproved of the imposition of such condition. The conditions imposed must not be onerous or excessive.

"In the context of grant of bail, all such conditions that would facilitate the appearance of the accused before the investigating officer/court, unhindered completion of investigation/trial and safety of the community assume relevance. However, inclusion of a condition for payment of money by the applicant for bail tends to create an impression that bail could be secured by depositing money alleged to have been cheated. That is really not the purpose and intent of the provisions for grant of bail".

Willingness of accused to deposit money as bail condition must be considered only in cases involving public money; not in private cases

The Court clarified that its observations should not be understood to have laid down the law that in no case should willingness to make payment/deposit by the accused be considered before grant of an order for bail. Only in exceptional cases where an allegation pertains to the misappropriation of public money, it is open to the court to consider such conditions in the public interest.

"However, such an approach would not be warranted in cases of private disputes where private parties complain of their money being involved in the offence of cheating", the Court stated.

Criminal law cannot be pressed into service to settle civil dispute

The court opined that the process of criminal law cannot be pressed for settling a civil dispute. Even if the appellant had undertaken to make payment, it should not have weighed in the mind of the high court.

The court held that the High Court fell in grave error in imposing such conditions. It remitted the matter to the high court and directed reconsideration of the application for pre-arrest bail on its own merits.

Case Title- Ramesh Kumar v State NCT of Delhi  

Citation : 2023 LiveLaw (SC) 496

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