Munish Bhasin &
Ors. Vs. State  INSC 377 (20 February 2009)
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
J.M. PANCHAL, J.
granted. The complainant (wife of first appellant) to whom notice was ordered
on 25.01.2008 is impleaded as second respondent.
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.
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
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
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.
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.
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.
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 7
(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
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, 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
the foregoing reasons, the appeal succeeds.
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.
Appeal is accordingly disposed of.