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TMI Blog2019 (3) TMI 1898X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit money in lieu of executing bond and with one/two sureties in the like amount. Granting or declining the bail depends upon the facts and circumstances of each case, which is within the exclusive discretion of Court of law or authority. However, such direction is to be exercised by the Court by considering facts and circumstances of the case. Once the Court comes to the conclusion on facts and circumstances of the case that a person is entitled to be released on bail, then no such condition other than as provided in Section 437 (3) or 438 (2) Cr.P.C. can be imposed. Imposition of such unreasonable condition is not only beyond the purview of the provisions of the Cr.P.C. but also beyond the powers of the Court. The condition to deposit an amount of 5 lacs in cash, imposed by learned Additional Sessions Judge, Gurugram vide order dated 14.05.2018 while granting bail to the petitioner is unreasonable and arbitrary and the same is liable to be set aside - the present petition is partly allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the parties and have also gone through the contents of the FIR as well as order dated 14.05.2018 passed by Additional Sessions Judge, Gurugram, whereby, the petitioner was ordered to be released on bail subject to deposit of an amount of ₹ 5 lacs by the petitioner. Section 437 Cr.P.C. empowers the authority of law to impose any condition while granting bail to any person accused of, which reads as under:- Section 437 in The Code Of Criminal Procedure, 1973 "437. When bail may be taken in case of non- bailable offence. (1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but- (i)Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on bail under subsection (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered." section 2 of Section 438 envisages conditions which can be imposed while granting anticipatory bail, which reads as under:- 438(2) When the High Court or the Court of Session makes a direction under sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son is required by any Court or officer to execute a bond with or without sureties, such 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. A perusal of provisions of Section 437 (3) and 438 (2) Cr.P.C. clearly show that conditions which can be imposed are primarily with a view to ensure availability of the accused during investigation, enquiry or trial and his non-interference with the course of justice. Other conditions which Court may think appropriate can be imposed but idea is to ensure his presence as and when required and his non-interference with the investigation, inquiry or trial. Section 440 of the Cr.P.C. denotes that the amount of every bond executed is to be fixed by considering the circumstances of the case but it should not be excessive. Similarly Section 441 of the Cr.P.C. provides that before releasing any person on bail or released on his own bond, a bond for such sum of money as the Court thinks sufficient is to be executed by such person. However, Section 441 of the Cr.P.C. does not speak abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ureties as a condition precedent for bail, was held to be unreasonable. Similar issue was there before Hon'ble the Apex Court in the cases of Shyam Singh Vs. State (2006) 9 SCC 169, Keshab Narayan Vs. State of Bihar AIR 1985 SC 1666, Hussainara Khatoon (I) Vs. Home Secretary, State of Bihar (1980) 2 SCC 81 and Mahesh Chandra Vs. State of U.P. (2006) 6 SCC 196. In Sandeep Jain's case (supra), it was also held that the accused cannot be detained in custody for long period without conviction. It has also been observed that Court had not even come to the conclusion that allegations made in the FIR were true and correct. It is to be seen and decided on conclusion of the trial. The question of a condition being onerous and unreasonable came for consideration before the Supreme Court in the case of Sumit Mehta Versus State (NCT of Delhi) (2013) 15 Supreme Court Cases 570 where considering the ratio laid down by the Constitution bench in the case of Gurubaksh Singh Sibbia V State of Punjab (1980) 2 SCC 565, Amarjit Singh Vs. State (NCT of Delhi) (2009) 13 SCC 769, Sk. Ayub V State of M.P. (2004) 13 SCC 457, Glaskasden Grace V Inspector of Police (2009) 12 SCC 769, Ramathal V Inspector o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the conditions for anticipatory bail cannot be onerous and unreasonable so as to defeat the purpose of grant of bail. The word "onerous" is defined in The New Lexicon Webster's Encyclopedic Dictionary as "burdensome or "troublesome". Black's Law Dictionary defines the word "onerous" Patna High Court Crl. Misc. No. 1320 of 2016 (3) dt. 01.04.2016 12 as Excessively burdensome or troublesome; causing hardship, Having or involving obligations that outweigh the advantages." Hence, the word "onerous" is a relative term. A condition in the same set of fact or nature of accusation may be onerous for one but not for the other, it depends upon the status of the person, nature of accusation and financial and other capabilities of the accused. Similar is the case of "unreasonableness". In the present case, learned Additional Sessions Judge, Gurugram while granting regular bail to the petitioner has asked him to furnish bail/surety bonds to the satisfaction of the trial Court subject to deposit of an amount of ₹ 5 lacs. The petitioner is a woman, and is aggrieved by the condition to deposit an amount of ₹ 5 lacs being financially weak and is not in a condition to de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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