N. Sasikala vs Enforcement Officer, Enforcement Directorate, Madras

The petitioner is seeking for modification of an order D/- 20-8-1996 passed by the Additional Chief Metropolitan Magistrate, E.O. 1, Madras

ordering the petitioner to furnish a bond for Rs. 3 crores and also with cash security for the same amount with two sureties of like sum each or cash

security for case one of the sureties for the said amount.

The case of the petitioner is that the conditions imposed by the learned Magistrate are impossible of compliance and the petitioner does not have

the wherewithal to furnish case deposit or even to find sureties to the above amount. The petitioner further submitted that the conditions attached to

the bail order amounts to denial of bail and per se unreasonable.

The respondent submitted that the conditions so imposed are purely the discretion of the Court and that the learned Magistrate has considered

the extent of seriousness and cumulative effect of the case and has fixed and quantum. It is also contended on behalf of respondent that in a case of

economic offence involving contravention to the extent of several crores of rupees affecting the economy of the Nation, the conditions should be in

commensurate with the extent of contravention and a lenient view should not be taken. It is further urged that since the petitioner herself had agreed

to abide by all the conditions that may by imposed for her release on bail, she is not entitled to resist the conditions imposed.

The point for consideration is whether the Magistrate can insist for cash security as a condition precedent to release a person on bail.

Section 440 of the new Code corresponds to Section 498 of the 1898 Code. Section 495 reproduces word for word. Section 513 of 1898

Code without any change. Section 441 of the new Code which corresponds to Section 499 of the old Code also contemplates taking of a

personal bond from the accused person and a bond by one or more sureties. Section 445 states that when any person is required by any Court or

officer to execute a bond, with or without sureties, such Court or Officer, may, except in the case of a bond for good behaviour, permit him to

deposit a sum of money or Government promissory notes to such amount as the Court or Officer may fix, in lieu of executing such bond. The

section makes it clear that Magistrate is not bound to accept cash but may permit an accused person to deposit a sum of money in lieu of executing

a personal bond and giving surety of some persons. A similar question was considered in a decision of the Allahabad High Court in R.R. Chari Vs.

Emperor, , wherein the Allahabad High Court held that the Magistrate is not bound to accept cash but may permit an accused to deposit a sum of

money in lieu of executing the personal bond and giving surety of some persons. The Court held that the Section, however, does not authorise a

demand of cash by a Magistrate. In State of Mysore v. H. Venkatarama Kotaiyah, 1968 Cri LJ 696, the Karnataka High Court held that if the

accused wants to deposit any sum of money, it is open to the Court to accept the same in lieu of executing a bond but the law does not empower

the Court to insist on cash deposit to be made by the accused. Even in Rajballam Singh Vs. Emperor, , the Patna High Court has held that law

does not contemplate or authorise Magistrate to demand case deposit as a condition to release an accused on bail. The decision of the Patna High

Court was followed by the Nagpur High Court in, Naiamat Khan v. Crown, AIR 1951 Nag 206. In Moti Ram and Others Vs. State of Madhya

Pradesh, , bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigent''s rights, the Supreme Court

held that bail covers both release on one''s own bond, with or without sureties. When sureties should be demanded and what sum should be

insisted upon are dependant on variables. In Keshab Narayan Banerjee and Another Vs. The State of Bihar, , the Supreme Court held that the

condition to furnish cash security with sureties for the like sum appears to be excessively onerous and such conditions may amount to denial of bail

itself and directed for enlargement on bail on furnishing a bond with sureties for a like sum. In Hussainara Khatoon and Others Vs. Home

Secretary, State of Bihar, Patna, , the Supreme Court observed that even while releasing the accused on personal bond, it is necessary to caution

the Court that the amount of the bond which it fixes should not be based merely on the nature of the charge, that the decision as regards the

amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of

his absconding and that the amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically.

The Supreme Court further held that when the accused is released on his personal bond, it would be very harsh and oppressive if he is required to

satisfy the Court that he is solvent and the injury into the solvency of the accused can become a source of great harassment to him and often result

in denial of bail and deprivation of liberty and should not therefore be insisted upon as a condition of acceptance of the personal bond.

This section provides for concession to an accused person who is unable to produce sureties. It is intended to help an accused where he is a

stranger to the place and is unable to find sureties. It is a discretionary power which comes into play after an order to execute a bond has been

made; the Court has no power to order deposit of cash, in the first instance. The cash deposit is discretionary and cannot be demanded. If the

petitioner has voluntarily agreed to abide by any condition, even then, the quantum should not be mechanically fixed according to the nature of the

charge, as has been held by the Supreme Court in, Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, . That amount

should be reasonable and should not be onerous.

In the case of another accused, namely, Baskaran, the Court imposed the condition to deposit Rs. 2 lakhs while releasing him on bail and later

on, even that amount also was returned. In another case, involving contravention in crores of rupees, bail was ordered on deposit of Rs. 50,000/-.

While determining the quantum to insure presence, though gravity of the offence is a relevant consideration to make the accused to feel rigor of the

contravention still such quantum should not be mechanically or arbitrarily fixed. When the law does not contemplate cash security insisting Rs. 3

Crores appears to be onerous and unreasonable and also mechanically fixed and that it would amount to an abuse of the discretion vested in the

Magistrate. In the result, I hold that Section 440 or 441 or 445 does not empower the Magistrate to demand a cash security, but may permit an

accused person to deposit a sum of money in lieu of executing a personal bond and giving surety of some persons.

For the foregoing reasons, the conditions imposed by the learned Magistrate ordering compulsive bail are modified as follows :-

The petitioner should furnish the present residential and her official address to the respondent.

The petitioner should appear before the respondent daily on all working days at 10.30 a.m. and variation in timings is left to the discretion of the

respondent according to their pressure of work, until further orders by the jurisdictional Court.

The petitioner shall not leave the metropolitan area. Madras City or India without prior permission of the Court.

The petitioner shall surrender her passport to the Court of Additional Chief Metropolitian Magistrate, E.O.I, Madras .

The petitioner shall not tamper with or hamper the investigation and directed to co-operate with the investigation as and when required;

Regarding the quantum of cash security, petitioner directed to furnish a bond a sum of Rs. 10 lakhs with two sureties for a like sum instead of

deposit of cash as ordered by the learned Addl. Chief Metropolitan Magistrate, E.O.I. Madras.

The order of the learned Magistrate touching terms in a bail conditions alone is modified as aforesaid. petition is ordered accordingly.

Order accordingly.