Reportable

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 U D G M E N T

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.

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

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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

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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

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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

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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,

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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

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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

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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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