Criminal Court Exercising Bail Jurisdiction Is Not Expected To Act As Recovery Agent To Realize Dues Of Complainant: SC

In a commendable, composed and courageous judgment titled Dilip Singh vs State of Madhya Pradesh and Another in Criminal Appeal No. 53 of 2021 (Arising out of SLP (Cri) No. 10484 of 2019) delivered on January 19, 2021 by a two Judge Bench of the Apex Court comprising of Justice Indira Banerjee and Justice Sanjiv Khanna, it has been observed that a criminal court exercising jurisdiction to grant bail/anticipatory bail, it is not expected to act as a recovery agent to realize the dues of the complainant. The Bench observed thus while setting aside a condition imposed by the Madhya Pradesh High Court on an accused while granting him anticipatory bail. Very rightly so.

To start with, the ball is set rolling by first and foremost observing in para 2 after granting leave in para 1 that, “This appeal is against an order dated 11 September 2019 passed by the High Court granting anticipatory bail to the appellant, subject to the condition of deposit of Rs 41 lakhs in court and upon his furnishing personal bond in the sum of Rs 50,000 with one solvent surety in the like amount to the satisfaction of the arresting officer. It was directed that the order would be governed by condition Nos 1 to 3 of sub-Section 2 of Section 438 of the Code of Criminal Procedure. The trial court was directed to deposit the amount so deposited by the appellant with any nationalized bank.”

To put things in perspective, the Bench then points out in para 3 that, “Ex facie, the disputes in the instant case are civil in nature. It is the contention of the complainant that despite having paid Rs 41 lakhs to the appellant pursuant to an agreement for purchase of agricultural land, the appellant has not executed the deed of sale in respect of the same. It appears that the complainant has also filed a civil suit for specific performance of the said agreement, which is pending adjudication.”

Truth be told, the Bench then points out in para 4 that, “By imposing the condition of deposit of Rs. 41 lakhs, the High Court has, in an application for pre-arrest bail under Section 438 of the Criminal Procedure Code, virtually issued directions in the nature of recovery in a civil suit.”

Most significantly and most remarkably, the Bench then without mincing any words waxes eloquent to state unambiguously in para 5 which forms the cornerstone of this commendable judgment that, “It is well settled by a plethora of decisions of this Court that criminal proceedings are not for realization of disputed dues. It is open to a Court to grant or refuse the prayer for anticipatory bail, 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 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 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.”

As it turned out, the Bench then points out in para 6 that, “We accordingly modify the order impugned before us by deleting the direction to deposit Rs 41 lakhs as directed by the High Court. Needless to mention, the grant of anticipatory bail shall be governed by the conditions in Section 438(2) of the Code of Criminal Procedure.”

Finally now let us come to the concluding paras. Para 7 states that, “The appeal is accordingly disposed of.” Lastly, para 8 then concludes by holding that, “Pending applications, if any, stand disposed of.”

On a concluding note, it may well be said that the Apex Court Bench of Justice Indira Banerjee and Justice Sanjiv Khanna  have very elegantly, eloquently and effectively observed that a criminal court exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realize the dues of the complainant. The courts must know what they are expected to deliver as very rightly held in this case by the top court and should not step out of their limits! Trial has to be independent and impartial which is possible only if the directions issued don’t have a direct bearing on the trial as has been held by the Apex Court in various cases. Very rightly so! Of course, all the courts in India must always unconditionally adhere to what the two Judge Bench of the Apex Court have laid down in this leading case as stated above! There can certainly be no ever denying or disputing it!

Sanjeev Sirohi,

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