ORDER G.B. Pattanaik and U.C. Banerjee, JJ.
1. Applications for impleadment are allowed.
2. These Special Leave Applications have been filed by the accused against whom offence under Sections 420 and 409 IPC read with Section 120B IPC has been alleged.
3. The accused moved for grant of anticipatory bail and the High Court from time to time has exercised discretion in granting anticipatory bail subject to certain terms and conditions thereon.
4. By order dated 31st January, 2000, after taking into consideration all relevant facts as well as the undertaking of the accused, the High Court granted anticipatory bail in favour of the petitioner subject to his depositing Rs. 20 crores on or before 15.2.2000, Rs. 15 crores on or before 31.03.2000 and another 15 crores to be paid on or before 30.04.2000 apart from other conditions. This order of 31st of January, 2000 stood modified by the order of 30th March, 2000 for payment of the aforesaid Rs. 15 crores by modifying the dates and putting several other conditions as enumerated in paragraph 18 of the said order.
5. The accused thereafter approached this Court and this Court had stayed operation of the aforesaid order on 17th April, 2000, by which date a sum of Rs. 35 crores out of Rs. 50 crores had already been paid and it is on account of the said order passed by this Court, a further sum of Rs. 15 crores as was required by the High Court, remained unpaid. Mr. Salve, the learned Solicitor General, appearing for the State of Tamil Nadu, vehemently contended that bearing in mind the nature of accusation, in fact no anticipatory bail should have been granted, but the same having been granted the terms and conditions imposed should not be interfered with by this Court under Article 136 of the Constitution of India. Mr. Nariman, on the other hand, contended that when Court exercises jurisdiction under Section 438 Cr. PC though is entitled to put conditions, but such conditions must be reasonable and judicious and the conditions should not be arbitrary.
6. Having considered the rival submissions and the provisions of Section 438 Cr. PC, we are of the considered opinion that the Court while exercising jurisdiction under Section 438 Cr. PC, must bear in mind and be satisfied that the accused will not abscond or otherwise misuse liberty and this can be ascertained from several factors like conduct of the accused in the past, his assets in the country and so on. But, while granting such anticipatory bail, though the Court may impose such conditions as it thinks fit, but the object of putting conditions should be to avoid the possibility of the person hampering investigation. The discretion of the Court while putting conditions should be an exercise of judicial discretion. In an offence under Section 409 and 420 IPC, the Court is certainly not going to recover the alleged amount as a condition of grant of bail. This being the position, since the High Court had directed the payment of aforesaid money on the basis of the undertaking given by the accused, we would not modify that part of the order and, therefore, the accused would be required to pay the balance sum of Rs. 15 crores within a period of four weeks from today. So far as the condition (b) imposed in paragraph 18 of the order, having considered the facts and circumstances of the case in hand and the object for which an accused is granted bail and the impossibility and/or severity of satisfying the said condition, we would alter the said condition (b) by directing that it would be open for the accused to furnish corporate guarantee to the extent mentioned in paragraph 18(b) of the aforesaid order to the satisfaction of the concerned Magistrate where the case is now pending. The Magistrate should be fully satisfied about the solvency of the corporate guarantee. All other conditions mentioned in paragraph 18 of the aforesaid order would remain operative and prosecution should take expeditious steps for completing the criminal proceedings. The corporate guarantee as aforesaid should be furnished within eight weeks from today.
7. The Special Leave Applications stand disposed of accordingly.