Vijay Kumar Verma, J.@mdashWhether in the case of jumping over bail, condition to deposit the amount of personal bond by the accused can be imposed at the time of granting fresh bail?, is the main point that falls for consideration in this bail application moved u/s 439(1)(b) of the Code of Criminal Procedure (in short, ''the Cr. P.C.''), in which it is prayed that condition No. 1 imposed by the Special Judge, S.C./S.T. Act, Agra in the bail order dated 20.3.2009, passed in Special Session Trial No. 49 of 2005, arising out of Case Crime No. 106 of 2004, State v. Ninua and Ors., under Sections 323, 325, 504, 506, I.P.C. and 3(1)(x) of S.C./S.T. Act, P. S. Tajganj, Agra be quashed.
2. Heard, Sri R. K. Rathore, advocate appearing for the applicant and A.G.A. for the State.
3. From the record, it is revealed that the applicant Radhey was accused in Case Crime No. 106/2004 under Sections 324, 323, 504, 506, I.P.C. and 3(1)(x) of S.C./S.T. Act, P. S. Tajganj, Agra. F.I.R. of that case was lodged by Bablu S/o Moti Lal. Alongwith the applicant, three more persons, namely Kalicharan alias Kalua, Ninua and Kaushal were also made accused in that case. On submission of charge-sheet, the accused persons were facing trial in S.S.T. No. 14 of 2005 in the Court of Special Judge, S.C./S.T. Act, Agra. From the impugned order dated 20.3.2009, passed in aforesaid special session trial, it appears that the applicant Radhey, who was on bail, became absent on 9.8.2005. Therefore, non-bailable warrant was issued against him and notice to the sureties were also issued. The applicant was arrested on 24.2.2009. He moved bail application before the court below, which was allowed by the impugned order on executing a personal bond of Rs. 25,000 and furnishing two sureties each in the like amount. Simultaneously, a condition to deposit in Court the amount (Rs. 25,000) of personal bond was also imposed by the learned Special Judge, S.C./S.T. Act, Agra. This condition is being sought to be quashed by the applicant by means of this application.
4. It is submitted by learned Counsel for the applicant that at the time of granting fresh bail, the court below could not impose the condition to deposit the amount of earlier executed personal bond, without following the procedure provided u/s 446, Cr. P.C. and hence condition No. 1 of the impugned order directing the applicant to deposit the amount of personal bond should be quashed, so that the applicant may come out from jail after executing fresh personal bond and furnishing surety bonds in pursuance of that order.
5. It is also submitted by the learned Counsel for the applicant that special procedure is provided in Section 446, Cr. P.C. to recover the amount of personal bond, if the said bond is forfeited and given go-bye to that procedure, the amount of personal bond cannot be recovered through back-door by imposing condition of depositing the amount of personal bond at the time of granting fresh bail to the accused.
6. The application has been opposed by learned A.G.A. contending that the applicant was misusing the liberty of bail and hence the court below did not commit any illegality in imposing the condition to deposit the amount of personal bond at the time of granting fresh bail to him.
7. Having given my thoughtful consideration to the rival submissions made by the parties counsel, the impugned order of imposing the condition to deposit the amount of personal bond at the time of granting fresh bail to the applicant is wholly illegal.
8. If the bond executed by the accused or surety is forfeited, then special procedure is provided in Section 446, Cr. P.C. to recover the amount of that bond. Section 446, Cr. P.C. reads thus:
446. Procedure when bond has been forfeited.-
(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, that the bond has been forfeited.
or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited.
the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
Explanation.-A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code:
Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.
(3) The Court may, (after recording its reasons for doing so), remit any portion of the penalty mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security u/s 106 or Section 117 or Section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond u/s 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this Section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.
9. In case of forfeiture of bond, complete procedure to recover the amount of bond is provided in Section 446, Cr. P.C. The court below did not follow the procedure provided in Section 446, Cr. P.C. while imposing condition in bail order dated 20.3.2009 to deposit the amount of personal bond. The amount of personal bond executed by the accused can only be realized after giving notice to him to show cause as to why the amount of bond be not recovered. Without giving opportunity to the accused to show cause as provided in Section 446, Cr. P.C., the amount of personal bond cannot be recovered from him at the time of granting fresh bail. In my considered opinion, the Courts cannot recover the amount of previously executed personal bond from the accused by back-door imposing a condition to deposit the same at the time of passing order for granting fresh bail.
10. The Hon''ble Apex Court has held in
It is well-settled that while exercising discretion to release an accused u/s 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 u/s 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all.
11. The following observations made in paras 11 and 12 of the report are also worth mentioning:
11. 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 u/s 438 of the Code.
12. While imposing conditions on an accused who approaches the Court u/s 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 u/s 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail u/s 438 of the Code.
12. The High Court in aforesaid case had directed the accused to pay a sum of Rs. 12,500 per month by way of maintenance to his wife and child as a condition for grant of anticipatory bail. The Hon''ble Apex Court set aside the said condition holding that the condition imposed by the High Court is onerous and unwarranted.
13. Although aforesaid observations have been made by the Hon''ble Apex Court in the matter of granting anticipatory bail but these observations should be kept in view at the time of passing order in regular bail applications also and the accused should not be subjected to irrelevant, uncalled for, onerous and unwarranted conditions and justice should not be denied by imposing such conditions. Endeavour of the Courts should be to do justice and not to dispense with it.
14. In view of the foregoing discussion, the condition of depositing the amount of personal bond by the applicant imposed by the court below in the impugned order dated 20.3.2009 is liable to set aside, being illegal, onerous and unwarranted.
15. Consequently, the application u/s 439(1)(b), Cr. P.C. is allowed and condition No. 1 imposed by the Special Judge, S.C./S.T. Act, Agra in order dated 20.3.2009, passed in S.S.T. No. 49 of 2005 directing the applicant to deposit the amount of personal bond is hereby set aside. On acceptance of personal bond and surety bonds in pursuance of the impugned order, the applicant shall be set at liberty, if not required to be detained in jail for some other case.
