Mahendra Nath Roy vs State of U.P. and Another

G.P. Mathur, J.—This petition u/s 482, Code of Criminal Procedure, has been filed for quashing the condition imposed in the bail order passed by A.C.J.M., Lucknow on 19.4.1989 in a case u/s 406/420, I.P.C., whereby the applicant was directed to pay Rs. 5,000 to the complainant by 30.4.1989 and Rs. 15,000 within three months. It was further directed that in case the aforesaid condition is not complied with, bail granted to the applicant would stand automatically cancelled.

Jagat Narain Roy, opposite party No. 2 lodged a F.I.R. against the applicant--Mahendra Nath Roy at P.S. Mahanagar, Lucknow on 11.4.1989 alleging that he had given two bank drafts of Rs. 10,000 each to the accused-applicant for depositing the same in the L.D.A. but instead of depositing the drafts in the account of the complainant, the accused deposited the same in his own account and also in the account of his wife, as both of them had been allotted some property by the development authority. On the basis of the aforesaid F.I.R., a case was registered as Crime No. 159 of 1989 u/s 406/420, I.P.C., against the applicant at P.S. Mahanagar, Lucknow. The applicant surrendered in the Court of learned Magistrate and moved an application for bail. The 2nd A.C.J.M., Lucknow by his order dated 19.4.1989 granted bail to the applicant. However, he imposed a condition in the bail order which has been impugned in the present petition.

I have heard learned Counsel for the applicant learned Counsel for opposite party No. 2 and have perused the record. The bail order dated 19.4.1989 passed by learned Magistrate shows that while granting bail to the applicant, he has directed that the entire amount of Rs. 20,000, which according to the complainant has been misappropriated by the applicant, has been directed to be paid to the complainant-opposite party No. 2. The question which requires consideration is whether such a condition while granting bail could be imposed. Section 437(3), Code of Criminal Procedure provides that a condition may be imposed by the Court while granting bail to a person accused or suspected of commission of an offence punishable with imprisonment which may extend to seven years or more if the offence is under Chapter 17 of the I.P.C. The condition can be imposed provided the requirements of Sub-clause (a), (b) or (c) of Sub-section (3) of Section 437 are satisfied. The impugned order shows that condition has not been imposed having regard to Sub-clause (a) or (b) of Sub-section (3) of Section 437, Code of Criminal Procedure. The case may at best be covered by Sub-clause (c) which provides that a condition can be imposed which the court considers otherwise in the interest of justice. The allegation of the complainant is that he handed over two bank drafts of total amount of Rs. 20,000 to the applicant for being deposited in the Lucknow Development Authority but instead of doing so, he deposited the same in his own account and thereby caused a loss of Rs. 20,000 to him. The result of the condition imposed in the bail order is that the applicant will have to pay the whole amount of Rs. 20,000 to the complainant, otherwise his bail would be automatically cancelled. In my opinion, on the facts and circumstances of the case, the condition imposed by the learned Magistrate is wholly illegal. The complainant has yet to lead evidence to establish his case. Even before the parties have adduced any evidence, a direction by which the entire disputed amount will have to be paid by the accused to the complainant will be highly unjust. One important feature which has been ignored by learned Magistrate is that in case the trial ends in acquittal, there is no legal method available for the accused to recover the amount from the complainant. Any direction for payment of money to the complainant by the accused prior to the decision of the case, is therefore, wholly illegal.

The purpose of criminal prosecution is basically to punish an accused for the offence which he has committed. Its purpose is not to monetarily compensate the complainant. Section 357, Code of Criminal Procedure provides that the court while imposing a sentence of fine or order the whole or any part of the fine recovered for the payment to any person of compensation for any loss or injury caused by the offence, when the compensation is, in the opinion of the court, recoverable by such person in a civil court. Therefore, while imposing a sentence of fine, the Court can direct that certain amount out of fine be paid as compensation to the complainant. Sub-section (2) of Section 357 lays down that where fine is imposed in a case which is subject to appeal no such compensation shall be paid to the complainant before the period allowed for presenting the appeal has elapsed or if an appeal has been presented, before the decision of appeal. The legislative intent, therefore, is that the compensation should not be paid to the complainant till the final decision of the case. The reason for such a provision is obvious, if the amount is paid to the complainant before the final decision of the case and if ultimately the accused is acquitted, it may not be possible for him to recover the amount from the complainant. The learned Magistrate has pre-judged the issue by directing payment of the amount to the complainant even before the trial had commenced and the complainant had led any evidence whatsoever to establish his case. Therefore, the impugned direction for payment of amount by way of a condition in the bail order is wholly illegal and cannot be sustained.

In the result, the petition succeeds and is hereby allowed. The direction issued for payment of amount of Rs. 20,000 by the applicant to the complainant is hereby quashed. The remaining part of the bail order shall stand and the applicant shall continue to be on bail provided he has furnished bail bonds in accordance with law.