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TMI Blog2008 (9) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act, 1962 (hereinafter referred to as "the said Act of 1962") for an alleged offence punishable under Section 135(1)(ii) of the said Act of 1962. The Petitioner was arrested on 12th April 2006. A remand application was filed before the learned Magistrate on the same day. The learned Magistrate granted remand though it was contended that the offence was a bailable offence. The Petitioner applied for bail and by order dated 15th April 2006, the learned Magistrate enlarged the Petitioner on bail. The relevant part of the order passed by the learned Magistrate reads thus :- "As far as accused Sultan K. Dharani, he be released on bail on executing PR & SB of Rs. three lacs with permission to deposit cost security in lieu of SB. If he possess the passport, then he shall deposit it with the department and if not, then, shall make an affidavit to that effect, immediately, on his release. He shall not leave India without permission of the Court in writing." 3. Criminal Application No. 1564/2006 was filed by the Petitioner in this Court seeking modification of the aforesaid condition. In this Petition, it is stated that the said Criminal Application was withdrawn by the Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an apprehension that the if the Petitioner is permitted to travel abroad, he will not remain available for the purpose of investigation and it will be very difficult to secure his presence. She placed reliance on a decision of the Apex Court in the case of Hazari Lal Gupta v. Rameshwar Prasad and another [1972 Cri.L.J. 298]. She also relied upon another decision of the Apex Court in the case of Talab Haji Hussain v. Madhukar Purshottam Mondkar and Another [1958 Cri.L.J. 701] in support of her submission that in a given case, while enlarging an accused on bail where offence alleged is bailable, the Court can impose suitable conditions. She submitted that there is no prohibition provided in the Statute which prevents a Court from imposing suitable conditions. 6. I have carefully considered the submissions. It is not in dispute that the offence alleged against the Petitioner is a bailable offence. The question is whether the learned magistrate while enlarging the Petitioner on bail in a bailable offence, could have imposed conditions such as a condition requiring the accused to surrender his passport. The question is whether the learned Magistrate could have imposed a condition that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, the said provision is applicable to all offences which are not non-bailable. The offences which are non-bailable are obviously the bailable offences. Thus, a person alleged of commission of a bailable offence is detained or arrested by an officer incharge of a police station, even the said police officer is under an obligation to release the person on bail. If such person arrested is brought before the Court, he is entitled to be enlarged on bail as a matter of right, provided he is prepared to give bail. Even in a case where a person who is accused of a bailable offence appears before the Court on his own, he is entitled to released on bail as a matter of right provided he offers to give bail. Therefore, in a case where a person is accused of commission of a bailable offence, there is no choice to the officer who has detained him or arrested him and to the Court before which he is produced to deny bail to such person provided the said person is ready to offer the bail. 9. Section 437 of the Code of 1973 gives power to the Courts other than this Court and the Court of Sessions to release an accused on bail in case of non-bailable offence. Section 439 deals with the power of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. (4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness." 12. It is apparent that in case of a bailable offence, the police officer or the Court, as the case may be, has to take a bond for such sum of money as the police officer or the Court, as the case may be, think sufficient. One or more sureties can also be taken. The bond to be taken in such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt was challenged in the Apex Court. The argument before the Apex Court was that notwithstanding the order of cancellation of bail passed by the High Court, the Appellant can again move the Court under Section 496 for grant of bail and the Trial Court is bound to grant bail as the right of the Appellant to be enlarged on bail in a bailable offence was an absolute and indefeasible right. While dealing with the said contention, the Apex Court held that the commitment of the Appellant to the custody was not by reason of the fact that he is alleged to have committed a bailable offence, but the reason for his commitment to custody was a judicial order passed on the ground that he has forfeited his bail. The Apex Court held that in such a case the Appellant was not entitled to fall back on his rights under Section 496 of the old Code. In that context, the Apex Court observed that indefeasible right conferred under Section 496 will not be available to the Appellant. However, as stated earlier, in paragraph 3 of the Judgment, the Apex Court upheld the right to bail of an accused under Section 496 of the old Code, provided the accused is willing to give bail. On plain reading of Section 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e where bail of an accused is cancelled and he is arrested and committed to the custody. In such a case, the Apex Court observed that the commitment of the accused to the custody is as a result of the judicial order passed on the ground that he has forfeited his bail and that his subsequent conduct shows that he cannot be at large. The Apex Court held that in such a case when the accused seeks bail, he cannot take benefit of Section 496 of the old Code and claim unqualified and absolute right to be released on bail. The same is the principle incorporated in sub-section (2) of Section 436 of the Code of 1973. Therefore, the law laid down in the said case operates at a stage when bail granted to an accused of bailable offence is cancelled and he is taken in custody. 17. The decision in the case of Hajarilal (supra) does not support the contentions raised by the learned Counsel appearing for the Respondent No. 1. This was a case where the Appellant before the Apex Court was arrested for the offence under Sections 406 and 420 of the Indian Penal Code. He was ordered to be enlarged on bail by imposing a condition that he will not leave India without the permission of the Court. On a Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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