Wednesday, 24 June 2020

Whether magistrate can impose conditions of depositing of passport and not travel abroad without permission while releasing accused in bailable case?

There are no such conditions which can be imposed while granting bail in a bailable offence under Section 436.

14. In Cri. W.P. No. 865 of 2007, Sultan Kamruddin Dharani v. The Union of India and Ors., decided by this Court on 19th September, 2008, a question arose, as to whether in a bailable offence under Customs Act, while granting bail, Court could impose condition to deposit Passport and not to travel abroad without permission. This Court (Coram A.S. Oka J.) observed thus in para 19:

Thus, the position of the law is that a person who is alleged to have committed a bailable offence has an unfettered and absolute right to be enlarged on bail and the Court or the Police Officer concerned, as the case may be, has no discretion to grant or refuse bail. Subject to first proviso to Sub-section (1) of Section 436 of the Code of 1973, the Court may modulate the condition of bail as regards the bail amount and the number of sureties. However, the Court cannot impose a condition which is not a term as to the bail. The condition of requiring a person accused of a bailable offence to surrender his passport to the court is not a term as to bail. If in such a case a condition is imposed that bail is granted subject to condition of deposit of passport, such a condition will defeat the absolute right of the accused under Section 436(1) of the said Code to be set at liberty. In the circumstances, while enlarging the Petitioner on bail in a bailable offence, the learned Magistrate has no jurisdiction to direct deposit of the passport. The Magistrate cannot impose a condition while granting bail in a bailable offence of not leaving India without the permission of the Court. Whenever the Petitioner is enlarged on bail he is bound to attend the concerned Court on the date fixed or whenever he is called upon to do so. This obligation is created by the bail bond. If he desires to remain absent, he will have to seek an exemption from the Court. In a given case if there is an apprehension that the accused is likely to abscond, steps can also be taken under the appropriate provisions of law. Steps can be also taken for impounding the passport.In bailable offence no conditions can be imposed except about appearance before a Court at particular place or on particular date.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 2939 of 2009

Decided On: 23.06.2010

Stefan Mueller Vs.  State of Maharashtra

Hon'ble Judges/Coram:
J.H. Bhatia, J.
Read full judgment here: Click here
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