Condition imposed by the court at the time of Granting AB

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1402/2013
Date of decision: 26th May, 2014
SUNIL AGGARWAL ….. Petitioner Through: Ms.Shilpi Jain, Adv.
versus
STATE & ANR. ….. Respondents Through: Mr.Navin Sharma, APP for the State. SI Zora Singh, PS Darya Ganj. Mr.Amit Jagga, Adv. for R-2.
CORAM: HON’BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J. (ORAL)
1. By way of this petition Section 482 Cr.P.C., petitioner Sunil Aggarwal has assailed the condition imposed in the order dated 15.12.2012 passed by learned Additional Sessions Judge-02, Central, Delhi whereby the anticipatory bail was granted to the petitioner.

2. The brief facts of the present case are that on the complaint of respondent No.2 herein, Smt.Meenu Aggarwal, FIR No.185/2012 under Section 498A/34 IPC was registered at PS Darya Ganj, Delhi.

3. The petitioner moved an application for anticipatory bail which was admitted vide impugned order dated 15.12.2012 passed by learned Additional Sessions Judge, Delhi, on furnishing a personal bond and surety bond in the sum of Rs.1 lakh each subject to the condition that he shall not leave the jurisdiction of the country and shall make no attempt to reach out to the complainant and her children at Mumbai, Delhi or any other place directly or through electronic means such as mobile, e-mail etc. and other conditions as mentioned in the said order.

4. The petitioner being aggrieved by the imposition of condition that the petitioner shall make no attempt to reach out to the complainant and her children at Mumbai, Delhi or any other place directly or through electronic means such as mobile, e-mail etc. has field the present petition.

5. Learned counsel for the petitioner contends that the condition imposed by learned Additional Sessions Judge, Delhi while granting anticipatory bail is harsh and onerous. The Additional Sessions Judge while dealing with the application for anticipatory bail had no jurisdiction to impose the said condition.

6. At this juncture, it is relevant to reproduce Sub Section (2) of Section 438 Cr.P.C. which reads as under:- “(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 –
(i) a condition that the person shall make himself available for interrogation by a police officer 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 permission of the Court;
(iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section.”

7. Sub-Section (3) of Section 437 of Cr.P.C., inter alia, envisages that when a person, accused or suspected of the commission of an offence punishable with imprisonment, which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under sub Section (1), the Court shall impose the conditions:- “(a) that such person shall attend in accordance with the 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) 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, and may also impose, in the interests of justice, such other conditions as it considers necessary.”

8. On careful scrutiny of the provisions of sub Section (2) of Section 438 and sub Section (3) of Section 437 of the Cr.P.C., it is clear 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 Cr.P.C.

9. A similar question came up for consideration before the Apex Court in Munish Bhasin & Ors. vs. State (Government of NCT of Delhi) & Anr., (2009) 4 SCC 45. The Hon’ble Supreme Court of India has observed as under:-

“10. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Sessions 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. 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 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 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. 12. 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 jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that 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.” 

10. In the instant case, the petitioner moved an application for anticipatory bail in case FIR No.185/2012 under Section 498A/34 IPC. Applying the law laid down in Munish Bhasin’s case (supra), the condition imposed by learned Additional Sessions Judge, Delhi that the petitioner shall make no attempt to reach out to the complainant and her children at Mumbai, Delhi or any other place directly or through electronic means such as mobile, e-mail etc. while exercising power under Section 438 of Cr.P.C. is unwarranted and is liable to be set aside.

11. In view of the aforesaid discussion, the petition succeeds. The condition imposed in order dated 15.12.2012 passed by learned Additional Sessions Judge, Delhi only to the effect that the petitioner shall make no attempt to reach out to the complainant and her children at Mumbai, Delhi or any other place directly or through electronic means such as mobile, e-mail etc. is set aside.

12. The petition is, accordingly, disposed of.

The applications are dismissed as infructuous. 

(VED PRAKASH VAISH) JUDGE

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