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Criminal Court In Bail Proceedings Not To Act As A Recovery Agent To Realize The Dues Of The Complainant

It is common knowledge that in order to put undue pressure on the Respondents, the Plaintiffs often resort to Criminal Proceedings along with Civil Remedies. The Apex Court recently on 19-03-2021 in the case of Manoj Kumar Sood Vs. State of Jharkhand in SLP (Crl) 1274/2021 held that criminal proceedings are not to coerce for realization of disputed civil dues or for procuring civil benefits and the Courts should desist from granting relief in such matters.

The brief facts of the case are that the High Court of Jharkhand granted Bail to the Petitioner subject to deposit of Bank Draft of Rs. 53,60,000/- before the trial court in the name of the informant in B.A. No. 4646 of 2020 vide order dated 27.07.2020 and the trial court shall release the same after obtaining an affidavit from the informant. It was also observed that the Parties would be at liberty to amicably settle their dispute and if the said amount is paid within a period of 60 days from the date of provisional bail, the same shall be made absolute.

It was also ruled that if the petitioners fail to deposit the said amount within 60 days of their provisional bail, the trial court shall cancel their bail bonds and take them into custody forthwith. The Apex Court after hearing the matter observed that the disputes in the instant case are civil in nature and the complainant has also filed a civil suit for specific performance of an alleged agreement executed by the petitioners for sale of property in Himachal Pradesh, which is pending adjudication. The Court ruled that criminal proceedings are not for realization of disputed dues.

The Court expressed displeasure at imposing the condition of payment of the disputed amount for grant of bail as the said direction was clearly in the nature of attachment or recovery even before judgment in a civil suit and the Court elucidated the conditions necessary for grant of bail thus:

"It is open to a Court to grant or refuse the prayer for bail, depending on the facts and circumstance 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; 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; the 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."

The Apex Court relied on the case of Shyam Singh vs. State through CBI (2006) 9 SCC 169 wherein the Apex Court at para 3 had categorically held thus: "We are of the view that the condition imposed by the High Court that the appellant shall make payment of Rs one lakh per month after his release on bail is not justified in the facts and circumstances of the case. It is of course, open to a court to grant or refuse bail, but to assume that an offence has been committed even at the stage of granting bail and to direct repayment of any amount is both onerous and unwarranted. In the instant case the liability of the appellant has yet to be determined in an appropriate proceeding."

The Court also referred to the case of Anil Mahajan vs. Bhor Industries Ltd. (2005) 100 SCC 228 wherein it was held that the substance of the complaint is to be seen and if criminal proceedings are unwarranted, there can be no question of custody and in no circumstance can bail be made subject to the terms, which in net effect would tantamount to execution at the inception itself.

The Apex Court thus deleting the payment of Rs.53,60,000/- made as a condition for grant of bail. The dictum of the Apex Court thus sets guidelines for grant of bail and forbids the trial court's to mandate payment of the disputed amount as a condition for grant of bail and also creates an embargo for the criminal courts to act as a recovery agent to realise the dues of the complainant in bail proceedings.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]

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