TaxTMI 
TaxTMI 
2013 (9) TMI 1265
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....cted him to deposit an amount of Rs. 1,00,00,000/- (one crore) in fixed deposit in the name of the complainant in any nationalized bank and to keep the FDR with the Investigating Officer. 3) According to learned senior counsel for the appellant, the condition for depositing the amount in fixed deposit in the impugned order is untenable in law and is outside the purview of Section 438 of the Code of Criminal Procedure, 1973 (in short "the Code"). He further pointed out that learned single Judge, while imposing the condition for depositing the amount in fixed deposit, has failed to appreciate that the liberty for grant of anticipatory bail under Section 438 of the Code cannot be used for recovery of the alleged cheated amount to the compla....
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.... answer the above question, it is useful to refer Section 438 of the Code which reads as under: "438. Direction for grant of bail to person apprehending arrest:- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a nonbailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a C....
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.... makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under subsection (3) of s....
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....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 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, 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 [1978]2SCR621 that in order to meet the cha....
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....d by this Court in I. Glaskasden Grace and Ors. vs. Inspector of Police and Anr. (2009) 12 SCC 769, Ramathal and Ors. vs. Inspector of Police and Anr. (2009) 12 SCC 721 and Sandeep Jain vs. National Capital Territory of Delhi Rep. by Secretary, Home Deptt. (2000) 2 SCC 66. 12) 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. 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 the investig....
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....only be ascertained after completion of trial. Certainly, in no 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. 16) The words "any condition" used in the provision should not be regarded as conferring absolute power on a Court of law to impose 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 b....