RAMESH KUMARversusSTATE OF NCT OF DELHI

             [2023] 9 S.C.R. 1165 : 2023 INSC 596                       1165


                        RAMESH KUMAR                                    A
                                 v.
                 THE STATE OF NCT OF DELHI
                (Criminal Appeal No. 1741 of 2023)
                           JULY 04, 2023                                B
    [S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
       Code of Criminal Procedure, 1973 – s.438 – Anticipatory Bail
– Payment of amount as a condition precedent for grant of bail –
Legality of – An FIR was registered u/ss. 420, 406 r/w s. 34 – As per
                                                                        C
the FIR, an agreement to sell was executed by and between the
builder and the complainants – Complainants had made payment
of Rs. 17,00,000/- by issuing cheques favouring the appellant-owner
allegedly on the instructions of the builder – Complainants were
not handed over the floor which they intended to purchase –
Apprehending arrest, the appellant moved an application u/s 438         D
Cr.P.C. before the trial court, which was dismissed – Appellant
approached High Court – High Court granted bail to the appellant
upon a condition of depositing Rs. 22,00,000/- – Appellant failed
to deposit the said amount – Bail granted to the appellant u/s. 438
Cr.P.C. got revoked – On appeal, held: The conditions to be imposed
                                                                        E
must not be onerous or unreasonable or excessive – All such
conditions that would facilitate the appearance of the accused
before the investigating officer/court, unhindered completion of
investigation/trial and safety of the community assume relevance –
However, inclusion of a condition for payment of money by the
applicant for bail tends to create an impression that bail could be     F
secured by depositing money alleged to have been cheated – That
is really not the purpose and intent of the provisions for grant of
bail – It is in exceptional cases such as where an allegation of
misappropriation of public money by the accused is levelled and
the accused while seeking indulgence of the Court to have his liberty
                                                                        G
secured/restored volunteers to account for the whole or any part of
the public money allegedly misappropriated – This approach would
be in the larger interest of the community – However, such an
approach would not be warranted in cases of private disputes where
private parties complain of their money being involved in the offence
of cheating – In the instant case, the High Court ought to have         H
                                 1165
1166            SUPREME COURT REPORTS                         [2023] 9 S.C.R.


 A     realized that having regard to the nature of dispute between the
       parties, which is predominantly civil in nature, the process of criminal
       law cannot be pressed into service for settling a civil dispute – If at
       all the offence alleged against the appellant is proved resulting in
       his conviction, he would be bound to suffer penal consequence(s)
       but despite such conviction he may not be under any obligation to
 B
       repay the amount allegedly received from the complainants.
             Disposing of the appeal, the Court
              HELD: 1. Sub-section (2) of section 438 of the Cr. PC does
       empower the high court or the court of sessions to impose such
 C     conditions while making a direction under sub-section (1) as it
       may think fit in the light of the facts of the particular case and
       such direction may include the conditions as in clauses (i) to (iv)
       thereof. However, a reading of the precedents laid down by this
       Court referred to above makes the position of law clear that the
       conditions to be imposed must not be onerous or unreasonable
 D     or excessive. In the context of grant of bail, all such conditions
       that would facilitate the appearance of the accused before the
       investigating officer/court, unhindered completion of investigation/
       trial and safety of the community assume relevance. However,
       inclusion of a condition for payment of money by the applicant for
 E     bail tends to create an impression that bail could be secured by
       depositing money alleged to have been cheated. That is really
       not the purpose and intent of the provisions for grant of bail. In
       exceptional cases such as where an allegation of misappropriation
       of public money by the accused is levelled and the accused while
       seeking indulgence of the court to have his liberty secured/
 F     restored volunteers to account for the whole or any part of the
       public money allegedly misappropriated by him, it would be open
       to the concerned court to consider whether in the larger public
       interest the money misappropriated should be allowed to be
       deposited before the application for anticipatory bail/bail is taken
 G     up for final consideration. After all, no court should be averse to
       putting public money back in the system if the situation is
       conducive therefor. This approach would be in the larger interest
       of the community. However, such an approach would not be
       warranted in cases of private disputes where private parties
       complain of their money being involved in the offence of cheating.
 H     [Para 26][1178-E-H; 1179-A-C]
     RAMESH KUMAR v. THE STATE OF NCT OF DELHI                         1167


       2. Turning to the facts here, it is found that the version in   A
the FIR, even if taken on face value, discloses payment through
cheques of Rs.17,00,000/- (Rupees seventeen lakh) in the name
of the appellant and not Rs.22,00,000/- (Rupees twenty-two lakh).
The court is not been able to comprehend how the High Court
arrived at the latter figure as payable by the appellant and why
                                                                       B
the appellant’s counsel as well agreed with such figure. Prima
facie, there appears to be some sort of a calculation error. Also,
prima facie, there remains some doubt as regards the conduct of
the appellant in receiving cheques from the complainants without
there being any agreement inter se. Be that as it may, the High
Court ought to have realized that having regard to the nature of       C
dispute between the parties, which is predominantly civil in
nature, the process of criminal law cannot be pressed into service
for settling a civil dispute. Even if the appellant had undertaken
to make payment, which was a last ditch effort to avert losing his
liberty, such undertaking could not have weighed in the mind of
                                                                       D
the High Court to decide the question of grant of anticipatory
bail. The tests for grant of anticipatory bail are well delineated
and stand recognized by passage of time. The High Court would
have been well-advised to examine whether the appellant was to
be denied anticipatory bail on his failure to satisfy any of such
tests. It does seem that the submission made by counsel on behalf      E
of the appellant before the High Court had its own effect, although
it was far from being a relevant consideration for the purpose of
grant of bail. [Para 27][1179-D-H]
      3. It also does not appear from the materials on record that
the complainants have instituted any civil suit for recovery of        F
money allegedly paid by them to the appellant. If at all the offence
alleged against the appellant is proved resulting in his conviction,
he would be bound to suffer penal consequence(s) but despite
such conviction he may not be under any obligation to repay the
amount allegedly received from the complainants. This too is an
aspect which the High Court exercising jurisdiction under section      G
438 of the Cr. PC did not bear in mind. Under the circumstances,
the High Court fell in grave error in proceeding on the basis of
the undertaking of the appellant and imposing payment of
Rs.22,00,000/- (Rupees twenty-two lakh) as a condition precedent
for grant of bail. [Paras 28, 29][1180-A-C]                            H
1168            SUPREME COURT REPORTS                          [2023] 9 S.C.R.


 A           Gurbaksh Singh Sibbia and others vs. State of Punjab
             (1980) 2 SCC 565 : [1980] 3 SCR 383 – followed.
             Mahesh Candra vs. State of U.P. (2006) 6 SCC 196;
             Munish Bhasin vs. State (NCT of Delhi) (2009) 4 SCC
             45 : [2009] 2 SCR 806; Sumit Mehta vs. State (NCT of
 B           Delhi) (2013) 15 SCC 570 : [2013] 10 SCR 125; Dilip
             Singh vs. State of Madhya Pradesh (2021) 2 SCC 779;
             Bimla Tiwari vs. State of Bihar (2023) SCC OnLine SC
             51 – relied on.
                               Case Law Reference
 C     (2006) 6 SCC 196                  relied on                Para 20
       [2009] 2 SCR 806                  relied on                Para 12
       [1980] 3 SCR 383                  followed                 Para 19
       [2013] 10 SCR 125                 referred to              Para 22
 D
       (2021) 2 SCC 779                  relied on                Para 24
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
       No.1741 of 2023.
             From the Judgment and Order dated 24.11.2022 of the High Court
 E     of Delhi at New Delhi in BA No.313 of 2022.
             Sarvesh Bisaria, Ms. E. R. Sumathy, Prakash Chandra Sharma,
       Ashish Azad, Advs. for the Appellant.
             K. M. Nataraj, ASG, Shreekant Neelappa Terdal, Yashraj Singh
       Buldela, Veer Vikrant Singh, Vinayak Sharma, Dr. N. Visakamurthy,
 F     Sudhir Mendiratta, Vikas Khatri, Anmol Singh, Advs. for the Respondent.
             The Judgment of the Court was delivered by
             DIPANKAR DATTA, J.
             Leave granted.
 G           2. A disquieting trend emerging over the years which has gained
       pace in recent times necessitates this opinion. It has been found by us in
       multiple cases in the past several months that upon First Information
       Reports being lodged inter alia under section 420 of the Indian Penal
       Code, 1860 (“the IPC”, hereafter), judicial proceedings initiated by
 H     persons, accused of cheating, to obtain orders under Section 438 of the
      RAMESH KUMAR v. THE STATE OF NCT OF DELHI                                 1169


Code of Criminal Procedure, 1973 (“the Cr. PC”, hereafter) are                  A
unwittingly being transformed into processes for recovery of the quantum
of money allegedly cheated and the courts driven to impose conditions
for deposit/payment as pre-requisite for grant of pre-arrest bail. The
present case is no different from the others and it is considered appropriate
to remind the high courts and the sessions courts not to be unduly swayed
                                                                                B
by submissions advanced by counsel on behalf of the accused in the
nature of undertakings to keep in deposit/repay any amount while seeking
bail under section 438 of the Cr. PC. and incorporating a condition in
that behalf for deposit/payment as a pre-requisite for grant of bail.
        3. The bare facts relevant for a decision on this appeal, gathered
from the impugned judgment of the Delhi High Court, are these. The              C
appellant before us is the owner of an immovable property. With an
intention to re-develop the same, he had entered into three agreements
with one Ashwani Kumar (“the builder”, hereafter) dated 10th and 19th
December, 2018 and 30th January, 2019. In terms of the agreement dated
19th December, 2018, the builder was required to construct a multi-storied      D
building in which the appellant would have ownership rights in respect of
the 3rd floor and the upper floor, apart from Rs.55,00,000/- (Rupees fifty-
five lakh) to be paid to him by the builder, whereas the builder would
have rights to deal with the 1st and the 2nd floors together with other
rights as described therein. In pursuance of the aforesaid agreement,
the builder entered into an agreement to sell and purchase/bayana dated         E
14th December, 2018 with Vinay Kumar and Sandeep Kumar (“the
complainants”, hereafter) in respect of the 2nd floor of the proposed
building (without roof rights) but other rights as described therein for a
sum of Rs. 60,00,000/- (Rupees sixty lakh). The complainants had
allegedly paid to the builder Rs. 11,00,000/- (Rupees eleven lakh) [Rs.         F
1,00,000/- (Rupees one lakh) as token money and Rs. 10,00,000/- (Rupees
ten lakh) as earnest money], at the time of execution of the agreement
dated 14th December, 2018. Thereafter, on the instructions of the builder,
the complainants on different dates allegedly made payments of additional
amounts to the appellant as well as the builder, in cash as well as by
cheques, totaling to Rs. 35,00,000/- (Rupees thirty-five lakh).                 G

       4. Allegedly, the complainants failed to comply with the terms and
conditions of the agreement dated 14th December, 2018 triggering
institution of a civil suit by the builder against the complainants seeking
cancellation of such agreement and forfeiture of the amount of Rs.
                                                                                H
1170             SUPREME COURT REPORTS                            [2023] 9 S.C.R.


 A     13,00,000/- (Rupees thirteen lakh). This was purportedly upon invocation
       of clause 8 of the said agreement. It is also a matter of record that the
       builder has instituted another civil suit inter alia against the appellant for
       specific performance of the agreements dated 10th and 19th December,
       2018. However, from the materials on record, we have failed to ascertain
       the dates of institution of the civil suits.
 B
              5. The complainants were not handed over possession of the
       second floor which they intended to purchase. As late as on 18 th
       November, 2021, the complainants sought to put the investigative
       machinery in motion by lodging a complaint with the Station House
       Officer, Police Station Gulabi Bagh, Delhi. The said complaint was
 C     registered as FIR No.322 of 2021 under sections 420/406/34 of the IPC.
       Therein, the appellant, the builder and a broker were shown as accused.
             6. It is worthwhile to note from the FIR that despite there being
       an agreement to sell executed by and between the builder and the
       complainants, the complainants had made payment of Rs. 17,00,000/-
 D     (Rupees seventeen lakh) by issuing cheques favouring the appellant
       allegedly on the instructions of the builder.
              7. Since the complainants had effected payment of substantial
       amount of money to the appellant and the builder having failed to deliver
       possession of the second floor of the proposed building, the complainants
 E     felt cheated and urged the police to investigate the crime committed
       inter alia by the appellant and the builder.
              8. Apprehending arrest, the appellant moved the relevant criminal
       court [MACT-02 (CENTRAL)] seeking an order under section 438 of
       the Cr. PC. Initially, on 30th November, 2011, the Presiding Officer granted
 F     interim protection from arrest to the appellant, subject to his cooperating
       with the investigating agency, upon being informed by the investigating
       officer that no agreement was executed by and between the appellant
       and the complainants. However, for reasons assigned in the subsequent
       order dated 18th January, 2022, the application was dismissed by the
 G     Presiding Officer and interim protection earlier granted to the appellant
       was withdrawn.
             9. In the background of the aforesaid facts and circumstances,
       the appellant approached the High Court seeking an order under section
       438 of the Cr. PC. Similar approach was made by the builder. The High
       Court by its common order dated 24th November, 2022 granted bail to
 H
      RAMESH KUMAR v. THE STATE OF NCT OF DELHI                                  1171
                [DIPANKAR DATTA, J.]

the appellant and the builder, subject to certain conditions. One of the         A
conditions imposed by the High Court for grant of bail reads as follows:
       “(e) as undertaken, the petitioners/builder Ashwani Kumar shall
       deposit a sum of Rs. 13,00,000/- (Rs. Thirteen lacs only) and the
       owner Ramesh Kumar shall deposit a sum of Rs. 22,00,000/- (Rs.
       Twenty-two lacs), with the learned Trial Court, in the form of            B
       FDR in the name of the Court initially for a period of one year
       with an automatic renewal clause, within 4 weeks.”
       The undertaking referred to in the aforesaid extract is traceable
to paragraph 6 of the impugned judgment, reading as follows:
       “6.0. In rebuttal, Ld. Counsel for the petitioners submitted that         C
       the petitioners are ready to join investigation and explain. Ld.
       Counsel also submitted that without prejudice to their respective
       rights and contentions, the builder undertakes to deposit a sum of
       Rs. 13 lacs within 8 weeks and owner Ramesh Kumar is ready to
       deposit a sum of Rs. 22 lacs with the Court.”                             D
       10. Expressing his difficulty in arranging for funds to deposit Rs.
22,00,000/- (Rupees twenty-two lakh), the appellant had applied before
the High Court under section 482 of the Cr. PC seeking extension of
time to make the requisite deposit. By an order dated 8th February, 2023,
the said application was disposed of by the High Court granting extension        E
of time by 3 (three) days, failing which it was directed that anticipatory
bail granted to the appellant shall automatically stand revoked.
      11. The appellant is aggrieved by the aforesaid condition [clause(e)
of paragraph 9.0. of the impugned judgment and order] imposed by the
High Court and is now before us seeking revocation of the same while             F
urging that the other part of the order be maintained.
       12. According to counsel for the appellant, the condition imposed
is onerous and is not called for having regard to the satisfaction recorded
by the High Court in paragraph 8.0. that the appellant has joined
investigation and that both the appellant and the builder are ready to
                                                                                 G
provide any clarification/explanation for the purpose of completion of
investigation. It is further contended on behalf of the appellant that he is
a victim of a conspiracy hatched by and between the builder and the
complainants with the result that he is still unable to enjoy his own property
which was required to be redeveloped by the builder within the time
stipulated in the relevant agreement. Finally, it has been contended on          H
1172                SUPREME COURT REPORTS                       [2023] 9 S.C.R.


 A     behalf of the appellant that having regard to the decision of this Court in
       Munish Bhasin vs. State (NCT of Delhi)1, the impugned condition
       imposed for grant of bail requiring deposit of Rs.22,00,000/- (Rupees
       twenty-two lakh) in the form of FDR in the Trial Court is bad in law and
       liable to be set aside.
 B            13. The appeal has been opposed by counsel for the State.
       According to him, the impugned condition was imposed because the
       appellant through his counsel had volunteered to keep in deposit Rs.
       22,00,000/- (Rupees twenty-two lakh) without prejudice to his rights and
       contentions. Now that the High Court had proceeded to make its order
       based on such undertaking and also that the appellant had applied for
 C     extension of time which was granted, it is not an appropriate case where
       this Court should interfere in the exercise of its jurisdiction.
               14. Having heard the parties and on perusal of the materials on
       record, there seems to be little doubt that the appellant had volunteered
       to deposit Rs. 22,00,000/- (Rupees twenty-two lakh) without prejudice
 D     to his rights and contentions and that he had also applied for extension of
       time to make such deposit which was also granted; but having failed to
       arrange for sufficient funds, he is questioning the condition imposed by
       the High Court for grant of pre-arrest bail.
              15. In course of hearing before the High Court, a status report
 E     had been submitted with regard to the progress of investigation. Such
       report disclosed that the construction of the proposed building had
       progressed only up to the 1st floor and obviously, therefore, the 2nd and
       the 3rd floors were still not in existence. From such status report, it is
       therefore clear that neither was the floor which the complainants intended
 F     to purchase is complete nor the floors in respect whereof the appellant
       could exercise his rights were in existence.
              16. A strikingfeature of the case is that although the appellant
       through his counsel had undertaken to deposit a sum of Rs. 22,00,000/-
       (Rupees twenty-two lakh) with the trial court, the FIR version is that the
 G     appellant had received separate cheques in his name for a total amount
       of Rs.17,00,000/- (Rupees seventeen lakh) [Rs. 5,00,000/- (Rupees five
       lakh) on 20th December, 2018, Rs. 2,00,000/- (Rupees two lakh) on 28 th
       December, 2018, Rs. 4,00,000/- (Rupees four lakh) on 28 th December,
       2018, Rs. 1,00,000/- (Rupees one lakh) on 28th December, 2018, and
       1
           (2009) 4 SCC 45
 H
         RAMESH KUMAR v. THE STATE OF NCT OF DELHI                                1173
                   [DIPANKAR DATTA, J.]

Rs.5,00,000/- (Rupees five lakh) on 21st February, 2019]. That the                A
appellant had received through cheques a total amount of Rs.17,00,000/
- (Rupees seventeen lakh) was also noticed by the Presiding Officer
while dismissing the appellant’s application by the order dated 18th
January, 2022. However, there can be no doubt that counsel on behalf of
the appellant had submitted before the High Court that he was ready to
                                                                                  B
deposit a sum Rs. 22,00,000/- (Rupees twenty-two lakh), which prima
facie happens to be in excess of what the appellant is alleged to have
received from the complainants by cheques drawn in his favour on the
instructions of the builder. We are not concerned at this stage with alleged
payments made by the complainants to the builder.
      17. Legality of the impugned condition is what we are now tasked            C
to examine and decide.
       18. It would be appropriate at this stage to note certain precedents
in the field governing the discretion of the courts to grant anticipatory
bail.
                                                                                  D
       19. We start with Gurbaksh Singh Sibbia and others vs. State
of Punjab2, a Constitution Bench decision of this Court. It was held
there as follows:
         “26. We find a great deal of substance in Mr Tarkunde’s submission
         that since denial of bail amounts to deprivation of personal liberty,    E
         the court should lean against the imposition of unnecessary
         restrictions on the scope of Section 438, especially when no such
         restrictions have been imposed by the legislature in the terms of
         that section. Section 438 is a procedural provision which is
         concerned with the personal liberty of the individual, who is entitled
         to the benefit of the presumption of innocence since he is not, on       F
         the date of his application for anticipatory bail, convicted of the
         offence in respect of which he seeks bail. An over-generous
         infusion of constraints and conditions which are not to be found in
         Section 438 can make its provisions constitutionally vulnerable
         since the right to personal freedom cannot be made to depend on          G
         compliance with unreasonable restrictions. The beneficent
         provision contained in Section 438 must be saved, not jettisoned.
         No doubt can linger after the decision in Maneka Gandhi [Maneka
         Gandhi v. Union of India, (1978) 1 SCC 248], that in order to meet
2
    (1980) 2 SCC 565
                                                                                  H
1174                SUPREME COURT REPORTS                           [2023] 9 S.C.R.


 A              the challenge of Article 21 of the Constitution, the procedure
                established by law for depriving a person of his liberty must be
                fair, just and reasonable. Section 438, in the form in which it is
                conceived by the legislature, is open to no exception on the ground
                that it prescribes a procedure which is unjust or unfair. We ought,
                at all costs, to avoid throwing it open to a Constitutional challenge
 B
                by reading words in it which are not to be found therein.”
             20. This Court in Mahesh Candra vs. State of U.P.3 was dealing
       with a case where the relevant high court had directed payment of
       Rs.2,000/- (Rupees two thousand) to be made to the victim (daughter-
       in-law) as a condition for grant of anticipatory bail. It was ruled by this
 C     Court as follows:
                “3. As a condition for grant of anticipatory bail, the High Court
                has recorded the undertaking of the petitioners to pay the victim
                daughter-in-law a sum of Rs 2000 per month and failure to do so
                would result in vacation of the order granting bail. […] We fail to
 D              understand how they can be made liable to deposit Rs 2000 per
                month for the maintenance of the victim. Moreover, while deciding
                a bail application, it is not the jurisdiction of the court to decide
                civil disputes as between the parties. We, therefore, remit the
                matter to the High Court to consider the bail application afresh on
 E              merit and to pass an appropriate order without imposing any
                condition of the nature imposed by the impugned order.”
              21. This Court in Munish Bhasin (supra), referred to by counsel
       for the appellant, had the occasion to observe as follows:
                “10. It is well settled that while exercising discretion to release an
 F              accused under Section 438 of the Code neither the High Court
                nor the Sessions 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
 G              accused on bail under Section 438 of the Code. However, the
                accused cannot be subjected to any irrelevant condition at all.
                ***
                12. While imposing conditions on an accused who approaches the
                court under Section 438 of the Code, the court should be extremely
       3
 H         (2006) 6 SCC 196
         RAMESH KUMAR v. THE STATE OF NCT OF DELHI                                 1175
                   [DIPANKAR DATTA, J.]

         chary in imposing conditions and should not transgress its jurisdiction   A
         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.
                                                                                   B
         13. 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         C
         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.”
       22. Sumit Mehta vs. State (NCT of Delhi)4 arises out of a decision          D
of the High Court granting anticipatory bail but inter alia on the condition
that the appellant, accused of commission of offences punishable under
sections 420/467/468/471 of the IPC, deposits an amount of
Rs.1,00,00,000/- (Rupees one crore) in fixed deposit in the name of the
complainant. The point that fell for consideration is captured in paragraph        E
6, which reads as follows:
         “6. The only point for consideration in this appeal is whether the
         condition of depositing an amount of Rs 1,00,00,000 in fixed deposit
         for anticipatory bail is sustainable in law and whether such condition
         is outside the purview of Section 438 of the Code?”                       F
      After hearing the parties, this Court made the following pertinent
observations:
         “11. While exercising power under Section 438 of the Code, the
         court is duty-bound to strike a balance between the individual’s
         right to personal freedom and the right of investigation of the police.   G
         For the same, while granting relief under Section 438(1),
         appropriate conditions can be imposed under Section 438(2) so as
         to ensure an uninterrupted investigation. The object of putting such
         conditions should be to avoid the possibility of the person hampering
4
    (2013) 15 SCC 570                                                              H
1176      SUPREME COURT REPORTS                            [2023] 9 S.C.R.


 A     the investigation. Thus, any condition, which has no reference to
       the fairness or propriety of the investigation or trial, cannot be
       countenanced as permissible under the law. So, the discretion of
       the court while imposing conditions must be exercised with utmost
       restraint.
 B     12. The law presumes an accused to be innocent till his guilt is
       proved. As a presumably innocent person, he is entitled to all the
       fundamental rights including the right to liberty guaranteed under
       Article 21 of the Constitution.
       13. We also clarify that while granting anticipatory bail, the courts
 C     are expected to consider and keep in mind the nature and gravity
       of accusation, antecedents of the applicant, namely, about his
       previous involvement in such offence and the possibility of the
       applicant to flee from justice. It is also the duty of the court to
       ascertain whether accusation has been made with the object of
       injuring or humiliating him by having him so arrested. It is needless
 D     to mention that the courts are duty-bound to impose appropriate
       conditions as provided under sub-section (2) of Section 438 of the
       Code.
       14. Thus, in the case on hand, fixed deposit of Rs 1,00,00,000 for
       a period of six months in the name of the complainant and to keep
 E     the FDR with the investigating officer as a condition precedent
       for grant of anticipatory bail is evidently onerous and unreasonable.
       It must be remembered that the court has not even come to the
       conclusion whether the allegations made are true or not which
       can only be ascertained after completion of trial. Certainly, in no
 F     words are we suggesting that the power to impose a condition of
       this nature is totally excluded, even in cases of cheating, electricity
       pilferage, white-collar crimes or chit fund scams, etc.
       15. The words ‘any condition’ used in the provision should not be
       regarded as conferring absolute power on a court of law to impose
 G     any condition that it chooses to impose. Any condition has to be
       interpreted as a reasonable condition acceptable in the facts
       permissible in the circumstance and effective in the pragmatic
       sense and should not defeat the order of grant of bail. We are of
       the view that the present facts and circumstances of the case do
       not warrant such extreme condition to be imposed.”
 H
         RAMESH KUMAR v. THE STATE OF NCT OF DELHI                                 1177
                   [DIPANKAR DATTA, J.]

          23. We may next take note of two decisions of this Court of recent       A
origin.
     24. In Dilip Singh vs. State of Madhya Pradesh5, this Court
sounded a note of caution in the following words:
          “3. By imposing the condition of deposit of Rs 41 lakhs, the High
          Court has, in an application for pre-arrest bail under Section 438       B
          of the Criminal Procedure Code, virtually issued directions in the
          nature of recovery in a civil suit.
          4. It is well settled by a plethora of decisions of this Court that
          criminal proceedings are not for realisation of disputed dues. It is
          open to a court to grant or refuse the prayer for anticipatory bail,     C
          depending on the facts and circumstances of the particular case.
          The factors to be taken into consideration, while considering an
          application for bail are the nature of accusation and the severity
          of the punishment in the case of conviction and the nature of the
          materials relied upon by the prosecution; reasonable apprehension        D
          of tampering with the witnesses or apprehension of threat to the
          complainant or the witnesses; reasonable possibility of securing
          the presence of the accused at the time of trial or the likelihood of
          his abscondence; character, behaviour and standing of the accused;
          and the circumstances which are peculiar or the accused and
          larger interest of the public or the State and similar other             E
          considerations. A criminal court, exercising jurisdiction to grant
          bail/anticipatory bail, is not expected to act as a recovery agent to
          realise the dues of the complainant, and that too, without any trial.”
      25. Yet again in Bimla Tiwari vs. State of Bihar6, this is what the
Court said:                                                                        F
          “9. We have indicated on more than one occasion that the process
          of criminal law, particularly in matters of grant of bail, is not akin
          to money recovery proceedings but what has been noticed in the
          present case carries the peculiarities of its own.
                                                                                   G
          10. We would reiterate that the process of criminal law cannot be
          utilised for arm-twisting and money recovery, particularly while
          opposing the prayer for bail. The question as to whether pre-
          arrest bail, or for that matter regular bail, in a given case is to be
5
    (2021) 2 SCC 779
6
    (2023) SCC OnLine SC 51                                                        H
1178            SUPREME COURT REPORTS                           [2023] 9 S.C.R.


 A           granted or not is required to be examined and the discretion is
             required to be exercised by the Court with reference to the material
             on record and the parameters governing bail considerations. Putting
             it in other words, in a given case, the concession of pre-arrest bail
             or regular bail could be declined even if the accused has made
             payment of the money involved or offers to make any payment;
 B
             conversely, in a given case, the concession of pre-arrest bail or
             regular bail could be granted irrespective of any payment or any
             offer of payment.
             11. We would further emphasize that, ordinarily, there is no
             justification in adopting such a course that for the purpose of being
 C           given the concession of pre-arrest bail, the person apprehending
             arrest ought to make payment. Recovery of money is essentially
             within the realm of civil proceedings.”
               26. Law regarding exercise of discretion while granting a prayer
       for bail under section 438 of the Cr. PC having been authoritatively laid
 D     down by this Court, we cannot but disapprove the imposition of a condition
       of the nature under challenge. Assuming that there is substance in the
       allegation of the complainants that the appellant (either in connivance
       with the builder or even in the absence of any such connivance) has
       cheated the complainants, the investigation is yet to result in a charge-
 E     sheet being filed under section 173(2) of the Cr. PC, not to speak of the
       alleged offence being proved before the competent trial court in
       accordance with the settled procedures and the applicable laws. Sub-
       section (2) of section 438 of the Cr. PC does empower the high court or
       the court of sessions to impose such conditions while making a direction
       under sub-section (1) as it may think fit in the light of the facts of the
 F     particular case and such direction may include the conditions as in clauses
       (i) to (iv) thereof. However, a reading of the precedents laid down by
       this Court referred to above makes the position of law clear that the
       conditions to be imposed must not be onerous or unreasonable or
       excessive. In the context of grant of bail, all such conditions that would
 G     facilitate the appearance of the accused before the investigating officer/
       court, unhindered completion of investigation/trial and safety of the
       community assume relevance. However, inclusion of a condition for
       payment of money by the applicant for bail tends to create an impression
       that bail could be secured by depositing money alleged to have been
       cheated. That is really not the purpose and intent of the provisions for
 H
      RAMESH KUMAR v. THE STATE OF NCT OF DELHI                                 1179
                [DIPANKAR DATTA, J.]

grant of bail. We may, however, not be understood to have laid down the         A
law that in no case should willingness to make payment/deposit by the
accused be considered before grant of an order for bail. In exceptional
cases such as where an allegation of misappropriation of public money
by the accused is levelled and the accused while seeking indulgence of
the court to have his liberty secured/restored volunteers to account for
                                                                                B
the whole or any part of the public money allegedly misappropriated by
him, it would be open to the concerned court to consider whether in the
larger public interest the money misappropriated should be allowed to be
deposited before the application for anticipatory bail/bail is taken up for
final consideration. After all, no court should be averse to putting public
money back in the system if the situation is conducive therefor. We are         C
minded to think that this approach would be in the larger interest of the
community. However, such an approach would not be warranted in cases
of private disputes where private parties complain of their money being
involved in the offence of cheating.
       27. Turning to the facts here, what we find is that the version in       D
the FIR, even if taken on face value, discloses payment through cheques
of Rs.17,00,000/- (Rupees seventeen lakh) in the name of the appellant
and not Rs.22,00,000/- (Rupees twenty-two lakh). We have not been
able to comprehend how the High Court arrived at the latter figure as
payable by the appellant and why the appellant’s counsel as well agreed
with such figure. Prima facie, there appears to be some sort of a               E
calculation error. Also, prima facie, there remains some doubt as regards
the conduct of the appellant in receiving cheques from the complainants
without there being any agreement inter se. Be that as it may, the High
Court ought to have realized that having regard to the nature of dispute
between the parties, which is predominantly civil in nature, the process        F
of criminal law cannot be pressed into service for settling a civil dispute.
Even if the appellant had undertaken to make payment, which we are
inclined to believe was a last ditch effort to avert losing his liberty, such
undertaking could not have weighed in the mind of the High Court to
decide the question of grant of anticipatory bail. The tests for grant of
anticipatory bail are well delineated and stand recognized by passage of        G
time. The High Court would have been well-advised to examine whether
the appellant was to be denied anticipatory bail on his failure to satisfy
any of such tests. It does seem that the submission made by counsel on
behalf of the appellant before the High Court had its own effect, although
                                                                                H
1180             SUPREME COURT REPORTS                            [2023] 9 S.C.R.


 A     it was far from being a relevant consideration for the purpose of grant of
       bail.
              28. It also does not appear from the materials on record that the
       complainants have instituted any civil suit for recovery of money allegedly
       paid by them to the appellant. If at all the offence alleged against the
 B     appellant is proved resulting in his conviction, he would be bound to
       suffer penal consequence(s) but despite such conviction he may not be
       under any obligation to repay the amount allegedly received from the
       complainants. This too is an aspect which the High Court exercising
       jurisdiction under section 438 of the Cr. PC did not bear in mind.
 C           29. Under the circumstances, we hold that the High Court fell in
       grave error in proceeding on the basis of the undertaking of the appellant
       and imposing payment of Rs.22,00,000/- (Rupees twenty-two lakh) as a
       condition precedent for grant of bail.
               30. We are not unmindful of the fact that the High Court was led
 D     by the appellant himself to an order granting bail with imposition of the
       impugned condition; hence, we are inclined to remit the matter to the
       High Court in line with the approach adopted by this Court in Mahesh
       Chandra (supra) and direct re-consideration of the application for pre-
       arrest bail and a decision on its own merits in the light of the observations
       made herein, as early as possible but preferably within 31st August, 2023.
 E     It is ordered accordingly.
              31. Till such time further orders are passed by the High Court, the
       appellant’s liberty shall not be infringed by the investigating officer. In
       the meanwhile, however, the appellant shall be bound to cooperate with
       the investigating officer, as and when he is called upon to do so.
 F
               32. Before concluding, we need to dispose of IA 94276 of 2023.
       It is an application for intervention at the instance of the complainants,
       who seek to assist the Court on the ground that any order passed on the
       appeal without giving opportunity of hearing to them would cause grave
       prejudice.
 G
              33. We hold that at this stage, the complainants have no right of
       audience before this Court or even the High Court having regard to the
       nature of offence alleged to have been committed by the appellant unless,
       of course, a situation for compounding of the offence under Section 420,
       IPC, with the permission of the Court, arises.
 H
      RAMESH KUMAR v. THE STATE OF NCT OF DELHI                          1181
                [DIPANKAR DATTA, J.]

      34. The appeal stands disposed of on terms as aforesaid. The       A
application for intervention stands dismissed.
       35. There shall be no order as to costs.

Ankit Gyan                                         Appeal disposed of.
(Assisted by : Mahendra Yadav, LCRA)                                     B




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