APPLN/4650/2008 of RAMONA M. CHANDIRAMANI Vs THE STATE OF MAHARASHTRA on 26 December 2008

1. This is an application for modification of the conditions imposed by the learned Sessions Judge vide order dated 18-12-2008, todeposit an amount of Rs.2,00,000/- for grant of anticipatory bail.2.Briefly stated, one Dinesh was domestic servant employedby the complainant. He allegedly assaulted the complainant in the morningof 24-11-2008, took away keys of cupboard and pushed her in thebathroom. The complainant became unconscious. Thereafter, Dineshcommitted theft of valuables, including jewelery, cash amount, camera etc.The complainant is a old-aged woman. She reported the incident to herson. The offence was later on reported to the police station. The mainaccused – Dinesh was arrested on 28-11-2008. At his instance, certainjewelery articles etc., came to be recovered.

3. According to the prosecution, after recovery of the jeweleryarticles, said Dinesh was interrogated further and one co-accused ShankarChaudhary was arrested. On 04-12-2008, cash amount of Rs.45,000/-came to be recovered at the instance of said Shankar Chaudhary. On 07-12-2008, said Shankar Chaudhary gave a confessional statement to theeffect that he had given cash amount of Rs.2,00,000/- to the applicant, withwhom he was working as a domestic servant.

4. The applicant apprehended her arrest in connection withCrime No.101/2008 registered by the police against said Dinesh and otheraccused. The applicant therefore, moved the Sessions Court for grant ofanticipatory bail vide Anticipatory Bail Application No.1415/2008.

5. It is not necessary to elaborately set out the nature ofallegations made against the applicant and the evidence collected duringthe investigation. Suffice it to say that on 18-12-2008, the learnedSessions Judge, heard the bail application and granted the application interms of final order, which is reproduced as follows : - “Application in respect of Manoj Chandiramani is disposedof as he is not named in the papers of investigation and he will not be made accused in this case.

Relief of anticipatory bail is granted to Smt.Ramona Chandiramani subject to deposit of Rs.2 lacs by her in court within eight days from today. In case of her arrest in CR No.101-08 registered for offence u/s 392, 394, 381, 411 r/w 120-B of IPC the Malabar Hill PS shall release her on her furnishing PR & SB in the sum of Rs.10000/-. She is to co-operate with the police during investigation. Amount when orders.

deposited is to be kept in FD immediately, till further

6. The applicant is aggrieved by the condition whereby shehas been directed to deposit Rs.2,00,000/- in the court within a period ofeight days.

The applicant is aggrieved by the condition whereby she

7. Heard learned Advocate Mr.Saraogi for the applicant andthe A.P.P. Mr.Adsule, for the State.

Analysis

8. The purport of Section 438 of the Code of CriminalProcedure, is to protect a person who apprehends arrest which is notrequired by law. It is well settled that where the arrest is likely to humiliateany person or is likely to be effected without any serious reason, theprotection can be granted. Infact, the expression “anticipatory bail” is amis-nomer. What the law provides under Section 438 is a direction forgrant of bail in the event of arrest. Needless to say, only if arrest iseffected then the direction to release the accused or beneficiary of suchprovision would come into effect. The conditions which are required to betaken into account are enumerated in sub-clause (2) of Section 438 ofCr.P.C. These conditions shown as (i) to (iv) of sub-clause (2), do notcontain any provision to direct making of deposit in terms of money. TheMaharashtra Amendment to Section 438 of the Cr.P.C., would show thatthe considerations interalia for grant of bail under Section 438 also include consideration (iii) that the object of the accusation if is to humiliate ormalign the reputation of the applicant by taking him/her so arrested, suchapplication may be granted.

9. Once the learned Sessions Judge noticed that such considerations would cover case of the applicant, then it will have to besaid that her arrest was not found necessary for the purpose ofinvestigation. I am of the opinion that the condition imposed by the learnedPrincipal Sessions Judge, City Civil & Sessions Court, Bombay, fordepositing Rs.2,00,000/-, is onerous and outside the pale of Section 438 ofCr.P.C.

10. The Court of Sessions is not required to ensure recoverywhich is the prime concern of the investigating agency. By the impugnedorder, the applicant is directed to be released on bail on her furnishing thebail bonds and the amount deposited by her is further directed to be kept inFD. There is no legal foundation to the impugned direction. Needless tosay, the learned Sessions Judge has acted arbitrarily while issuing theimpugned directions. The conditions for bail can be modified in view ofSection 440(2) of Cr.P.C., as well as in the exercise of revisionaljurisdiction under Section 401 of Cr.P.C.11.In the result, the application is allowed. The impugnedcondition is set aside. However, the applicant is directed to attend theconcerned police station on each Tuesday and Saturday between 10.00

a.m. To 1.00 p.m., and to co-operate with the Investigating Officer, MalbarHill Police Station. Her failure to attend the police station and to rendercooperation with the Investigating Officer, may entail cancellation of theliberty granted by way of anticipatory bail. If any recovery is effected fromthe applicant during the above period of her short presence on above daysat the police station with the Investigating Officer, the same may bedeemed as recovery under Section 27 of the Evidence Act, in view ofdictum in Shri Gurbaksh Singh Sibbia & Ors. V/s. State of Punjab,(1980) 2 SCC 565. The condition to attend the police station is however,co-terminus with filing of chargesheet in the Court or after a period of twomonths, whichever is earlier.

( V.R.KINGAONKAR, J. )