05 May 2121

A condition on bail application cannot be beyond the financial capacity of the applicant - Bombay High Court

Case : Mohammadali Jamaluddin Saiyyad @ Raunak Suresh Madhiwal vs. State of Maharashtra with Prashant Damodar Katkade Criminal Bail Application no. 168 of 2021 and Interim Application No. 1182 of 2021

Court : Bombay High Court

Bench : Justice Sarang V. Kotwal

Decided on : 05 May 2121

Relevant Statutes

Section 167(2) and 439 of Code of Criminal Procedure, 1973 

Brief Facts and Procedural History

1. Prashant Katkade was in the business of construction and development. He contacted the accused named Prakash Jadhav. Further, the accused represented the informant and told him that through the Chief Officer of the M/s Cobra Financial Solution, Branch, Walsad, Gujarat, he could get the loan of Rs, 5 Crore with an interest of 6 % annum. Afterwards, Prakash Jadhav, Prakash Parmarand Sjis Ameri met him and showed the willingness to give a loan. The informant paid Rs 22 lakh in cash as a commission but no loan was granted.

2. An F.I.R. was lodged by Prakash Katkade on 31.5.2018. Later, the Applicant was arrested but he was granted bail by Judicial Magistrate of First class on 10.5.2019 under Section 167(2) of Code of Criminal Procedure, 1973 with the sum of R. 50,000 with one or more local sureties. But the charge sheet was filed after 4 days, it was said that the Applicant cannot be arrested. Afterwards, the applicant filed another bail application under section 439 of Code of Criminal procedure, 1973 which was allowed by the Additional Session Judge on the condition of deposit of Rs, 22 lakh by order dated 21.8.2020.

3. The Applicant was unable to comply with the above application and for which he moved an application for relaxation but the application was rejected. Lastly, the Applicant filed an appeal before the Honourable High Court. 

The Issue of the Case

Whether the Applicant can be directed to release on bail under Section 167(2) of Code of Criminal procedure, 1973 or is it necessary to fulfil any condition for release on bail?

The Observations of the Court

1. The Honourable Bombay High Court observed that, The Applicant was not given the reasonable opportunity to furnish security. The Applicant has also not approached higher forum instead he preferred an application under Section 439 of the Code of Criminal Procedure, 1973.  If we refer to FIR, the offence was not committed by the applicant only.

2. In one of the Judgments referred, M.D. Dhanapal vs. State of Maharashtra represented by Inspector of Police (2019 (6) SCC 743, it was held that bail cannot be made conditional upon the heavy deposits which are beyond the financial capacity of the applicant. The Applicant was still in custody on 21.08.2020, therefore he was unable to pay Rs. 22 lakh.

3. The Honourable Bombay High Court observed that the Applicant was entitled to bail under Section 167 (2) of Code of Criminal procedure, 1973, but the antecedents of the applicant will have to be taken into the account. The Condition imposed by the learned Session judge as condition precedent cannot be sustained and also the case proceeded without any proof other than the F.IR. 

The Decision Held by the Court

1. The order passed by the Additional Sessions Judge on 21.8.2020 was set aside. The Interim application and Bail Application was also disposed of and the applicant was directed to release on the bail but on certain grounds:

a. On Furnishing a personal bond of Rs, 50000 with one or more local solvent sureties.

b. He shall deposit his passport with the investigating officer and shall also furnish the residential address and contact before releasing on bail.

c. The Applicant shall attend the Police Station every Monday of each month till framing of charges and shall also attend the trial except in a case which was prevented by reasonable cause. 

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