Munish Bhasin & Ors Vs N.C.T. of Delhi [ Irrelevant bail conditions can not be imposed]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 344 OF 2009 (Arising out of S.L.P. (Criminal) No.
637 of 2008) Munish Bhasin & Ors. ... Appellants Versus

State (Govt. of N.C.T. of Delhi) & Anr. ... Respondents JUDGMENT

J.M. PANCHAL, J.

Leave granted. The complainant (wife of first appellant) to whom notice was
ordered on 25.01.2008 is impleaded as second respondent.



2. Heard Counsel.

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3. The appellant (accused no. 1) assails the condition imposed by the High
Court requiring him to pay a sum of Rs.12,500/- as maintenance to his wife and
child while granting anticipatory bail to him and his parents with reference
to the complaint filed by his wife for alleged commission of offences
punishable under Sections 498A and 406 read with Section 34 of the Indian Penal
Code.

4. The marriage of the appellant was solemnized with Ms. Renuka on December 05,
2004. She has filed a complaint in November 2006, against the appellant and
his parents for alleged commission of offences punishable under Sections 498A
and 406 read with Section 34 of the Penal Code on the grounds that after
marriage she was subjected to mental and physical cruelty for bringing less
dowry and that her stri-dhan entrusted to them has been dishonestly
misappropriated by them.

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5. Apprehending arrest, the appellant and his parents moved High Court of Delhi
for anticipatory bail. The application came up for consideration before a
Learned Single Judge of the High Court on 22.02.2007. The Learned Additional
Public Prosecutor accepted notice and submitted that the matter was essentially
a matrimonial dispute and therefore the parties should be referred to the
Mediation and Conciliation Cell of the Delhi High Court. The Learned Judge
agreed with the suggestion made by the Additional Public Prosecutor and
directed the parties to appear before the Mediation and Conciliation Cell of
the Delhi High Court on March 02, 2007. The case was ordered to be listed on
10.05.2007. The Learned Judge further directed that in the event of arrest of
the appellant and his parents, before the next date of hearing, they shall be
released on bail on their furnishing personal bond in the sum of Rs.25,000/-
each with one surety of like amount to the satisfaction of the Investigating
Officer/ Arresting Officer concerned, subject however, to the condition that
the appellant and 4

his parents shall surrender their passports to the Investigating Officer and
shall file affidavits in the Court that they would not leave the country
without prior permission of the Court.



6. From the records, it appears that the conciliation proceedings failed and
therefore the bail application was taken up for hearing on merits. On
representation made by the wife of the appellant, the counsel of the appellant
was directed to produce appellant's salary slip. Accordingly, the salary slip
of the appellant was produced before the Court which indicated that the
appellant was drawing gross salary of Rs.41,598/- and after deductions of
advance tax etc., his net salary was Rs.33,000/-. The Learned Single Judge of
the High Court took the notice of the fact that the appellant had the duty to
maintain his wife and the child and therefore as a condition for grant of
anticipatory bail, directed the appellant, by the order dated 07.08.2007 to pay
a sum of Rs.12,500/- per month by way of maintenance to his 5

wife and child. The Learned Single Judge also directed to pay arrears at the
rate of Rs. 12,500/- per month from August 2005, that is Rs. 3,00,000/- within
six months. The imposition of these conditions for grant of anticipatory bail
is the subject matter of challenge in the instant appeal.



7. From the perusal of the provisions of sub-section (2) of section 438, it is
evident that when the High Court or the Court of Session makes a direction
under sub- section (1) to release an accused alleged to have committed non-
bailable offence, the Court may include such conditions in such direction in
the light of the facts of the particular case, as it may think fit, including
(i) a condition that a person shall make himself available for interrogation
by police officer as 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 6

police officer, (iii) a condition that the person shall not leave India without
the previous permission of the Court and (iv) such other conditions as may be
imposed under sub-section (3) of section 437, as if the bail were granted
under that section. Sub-section (3) of Section 437, inter alia, provides 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
abetment of, or conspiracy or attempt to commit, any such offence, is released
on bail under sub-section (1), the Court shall impose the following 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

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(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.

The Court may also impose, in the interests of justice, such other
conditions as it considers necessary.

8. It is well settled that while exercising discretion to release an accused
under Section 438 of the Code neither the High Court nor the Session 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 8

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. 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, 9

onerous or excessive so as to frustrate the very object of grant of
anticipatory bail under section 438 of the Code. In the instant case, the
question before the Court was whether having regard to the averments made by
Ms. Renuka in her complaint, the appellant and his parents were entitled to
bail under section 438 of the Code. When the High Court had found that a case
for grant of bail under section 438 was made out, it was not open to the Court
to direct the appellant to pay Rs. 3,00,000/- for past maintenance and a sum of
Rs.12,500/- per month as future maintenance to his wife and child. In a
proceeding under section 438 of the Code, the Court would not be justified in
awarding maintenance to the wife and child. The case of the appellant is that
his wife Renuka is employed and receiving a handsome salary and therefore is
not entitled to maintenance. Normally, the question of grant of maintenance
should be left to be decided by the competent Court in an appropriate
proceedings where the parties can adduce evidence in support of their
respective case, after which liability of 10

husband to pay maintenance could be determined and appropriate order would be
passed directing the husband to pay amount of maintenance to his wife. The
record of the instant case indicates that the wife of the appellant has
already approached appropriate Court for grant of maintenance and therefore the
High Court should have refrained from granting maintenance to the wife and
child of the appellant while exercising powers under section 438 of the Code.
The condition imposed by the High court directing the appellant to pay a sum of
Rs.12,500/- per month as maintenance to his wife and child is onerous,
unwarranted and is liable to be set aside.



9. For the foregoing reasons, the appeal succeeds. The direction contained in
order dated August 07, 2007 rendered by Learned Single Judge of Delhi High
Court in Bail Application No. 423 of 2007 requiring the appellant to pay a sum
of Rs.12,500/- per month by way of maintenance (both past and future) to his
wife and child 11

is hereby deleted. Rest of the directions contained in the said order are
maintained. It is however clarified that any amount received by the wife of the
appellant pursuant to the order of the High Court need not be refunded by her
to the appellant and will be adjusted subject to the result of application for
maintenance filed by wife of the appellant under Section 125 of the Code
before the appropriate Court.



10. The Appeal is accordingly disposed of. ..............................J.

[R.V. Raveendran]

..............................J.

[J.M. Panchal]

New Delhi;

February 20, 2009.

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