Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
17. 03.2015 CORAM THE HON'BLE MR.JUSTICE C.T.SELVAM CRL.O.P.(MD)No.3988 of 2015 PL.Padikkasu .. Petitioner .. Vs .. The Inspector of Police, District Crime Branch, Madurai. .. Respondents Criminal Original Petition filed under section 482 of the Code of Criminal Procedure, praying to set aside the onerous condition No.1 to pay cash security of Rs.2,00,00,000/- (Rupees Two Crores) and for the balance Rs.2,38,00,000/- (Rupees Two Crores Thirty Eight Lakhs) as bank guarantee to the Judicial Magistrate No.1, Madurai in the order dated 16.02.2015 passed in Crl.M.P.No.1050 of 2015 on the file of the I Additional Sessions Judge, Madurai. !For Petitioner : Mr.PL.Narayanan ^For Respondents : Mr.S.Shanmuga Velayutham Public Prosecutor Assisted by Mr.K.Anbarasan Government Advocate (Crl. Side) - - - - - :ORDER
This petition has been filed under Section 482 Cr.P.C., praying to set aside the onerous condition No.1 to pay cash security of Rs.2,00,00,000/- (Rupees Two Crores) and for Rs.2,38,00,000/- (Rupees Two Crores Thirty Eight Lakhs) as bank guarantee to the Judicial Magistrate No.1, Madurai in the order dated 16.02.2015, passed in Crl.M.P.No.1050 of 2015 on the file of the I Additional Sessions Judge, Madurai. 2.The petitioner moved for bail in Crl.M.P.No.1050 of 2015 which came to ordered on the following terms: '1. That the petitioner should pay cash security of Rs. Two crores and for the balance two crores and thirty eight lakhs as bank guarantee to the Judicial Magistrate No.1, Madurai.
2. That the petitioner should surrender his passport to the Judicial Magistrate No.1, Madurai.
3. That the petitioner should sign before the respondent police daily at 10. A.M. and at 5.30 P.M. until further orders. And the petitioner is ordered to be released on bail on his executing a bond for Rs.50,000/- with two sureties solvency for the likesum each to the satisfaction of the Judicial Magistrate No.1, Madurai.' 3. In the present petition, it has been contented that the terms imposed while granting bail are onerous and as such the same are to be set aside. 4.Heard learned counsel for petitioner and learned Public Prosecutor for respondent. 5.Mr.PL.Narayanan, learned counsel for petitioner would first contend that the imposition of the condition requiring the petitioner to furnish cash security for a sum of Rs.2,00,00,000/- and bank guarantee in a sum of Rs.2,38,00,000/- is onerous. The next contention of learned counsel for petitioner is that once cash security is ordered, the requirement of executing a bond for a specific sum providing sureties for such sum could not be enforced. 6.Learned counsel for petitioner relied on the decision of the Hon'ble Apex Court in M.Sreenivasalu Reddy v. State of T.N. ((2002) 10 Supreme Court Cases 653) to submit that in a similar matter the Hon'ble Supreme court has held that 'In an offence under Sections 409 and 420 IPC, the court is certainly not going to recover the alleged amount as a condition to granting of bail'. He submitted that the prosecution case is that the petitioner has caused loss to Government to the tune of Rs.4,38,00,000/- and the purpose of the Court below appeared to be to recover the alleged loss. He would rely on such decision to additionally submit that where the condition imposed was incapable of compliance, the order may be modified towards rendering the same compliable. 7.Learned counsel for petitioner relied on the decision of the Hon'ble Apex Court in Mahesh Chandra v. State of U.P. and others ((2006) 6 Supreme Court Cases 196) to submit that Section 28 of the Mines and Minerals (Development and Regulation) Act, 1957 provides for recovery of dues owed to Government as arrears of land revenues. Learned counsel relied on such decision to inform that in considering bail application the Court had no jurisdiction to decide the dispute between the parties. Learned counsel relied on the judgment of this Court in Alluvdin v. Inspector of Police, Vandhavasi Police Station (2001 Cri LJ2672 in support of his submission that order of requirement of cash security as also of execution of bond could not be imposed.
8. We have heard learned Public Prosecutor on the above submissions.
9. In the instant case, it has to be noted that the condition of requirement of bank guarantee and cash security came to be imposed on the undertaking of the counsel for the petitioner before the Court below.
10. In this regard, learned counsel for petitioner had stated that the petition in Crl.M.P.No.1050 of 2015 did not inform any undertaking and that it was only in answer to Court's question regards petitioner's willingness to offer security, his counsel had answered in the affirmative. Therefore, it was contented that in such circumstances the undertaking made by petitioner's counsel could not be taken to be of voluntary nature.
11. We are unable to agree with such contention. If we are to accept the contention that an undertaking of counsel would not bind his party, then, many a proceeding in Court could be brought to nought. That but for such undertaking the Court which has granted bail may not have done so, also is to be kept in mind. 12.In the instant case, in keeping with the undertaking the conditions imposed have already been complied with. As such, the question of impossibility of compliance does not arise. As regards the contention regarding requirement of cash deposit along with execution of bond, we may state that Section 445 Cr.P.C. permits the accused to provide cash security in circumstances, where he is unable to provide sureties as may be called for under Section 441 Cr.P.C. It is only in such position this Court in Alluvdin v. Inspector of Police, Vandhavasi Police Station (2001 Cri LJ2672, has informed that both requirements cannot be called for in one and the same order. The decision has no relevance in the facts of the present case. 13.Finding no merits in the petition, this Criminal Original Petition shall stand dismissed. Taking note of the submission of learned counsel for petitioner that a sum of Rs.2,00,00,000/- lying to the credit of the Crime number does no one any good and it would be appropriate to direct that such sum be deposited in a nationalized bank as doing so would result in accrual of interest income, and taking note of the submission of learned Public Prosecutor that a branch of the Indian Overseas Bank is situated at the District Court premises itself, there shall be a direction to the Judicial Magistrate No.1, Madurai to deposit the sum lying to the credit of Crime No.23 of 2015 on the file of respondent police in the Indian Overseas Bank, District Court Branch. Such Court may also effect renewal of such deposit as also accrued interest thereon from time to time as occasion may demand. 17.03.2015 Index : Yes/No Internet: Yes/No sj To 1.The Inspector of Police, District Crime Branch, Madurai. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. C.T.SELVAM, J.
sj CRL.O.P.(MD)No.3988 of 2015 17.03.2015