VIPIN MEHRA Vs. STATE

JUDGEMENT

(1.) The short question involved for determination in this petition, through which the order dated 19th April, 2001, passed by Shri S.N. Dhingra, learned ASJ has been assailed, is whether the Court has a judicial discretion or power either under Section 437 or 438 Cr.P.C. while considering the question of grant or refusal of bail to impose a condition directing the accused to furnish bank guarantee or deposit an amount of money.

(2.) In the instant case the bail was granted subject to the condition that the petitioner will submit bank guarantee to the tune of Rs. 10 lacs in the court concerned within one week. There is no gain saying the fact that every criminal court is a creature of Criminal Procedure Code. It is neither above it nor can it rise above it. It has to strictly remain within the precincts of Cr. P.C. even while exercising the discretionary powers. Even the discretionary powers are to be exercised judicially and not whimsically or capriciously.

(3.) While justifying the imposition of such a condition, Mr.Bhambani, learned counsel for respondent no.2 on whose complaint the cognizance was taken and the impugned order was passed has placed reliance upon Chakrawarti Prasad Vs. State of Bihar, II (2001) SLT 223 wherein the allegation was of pilferage of the electricity to the tune of Rs. 21 lakhs and the anticipatory bail was granted on the condition to remit this amount of Rs. 21 lakhs within a period of six months. As is apparent the difference in the facts of a case where a demand of Rs. 21 lakhs was raised by the electricity department on the consumer on account of pilferage of electricity and the facts of instant case sticks out for miles. In the aforesaid case the time schedule was also fixed for payment of Rs. 21 lakhs in instalments during the span of six months. By no stretch of imagination the ratio of this authority is applicable in the instant case. Another case relied upon by the learned counsel for the respondent is Srichand P.Hinduja vs. State through CBI, New Delhi, 2002 Crl.LJ. 942 whereby the permission to travel abroad was granted subject to the condition of executing a bond of Rs. 15 crores each with bank guarantee for the like amount to the satisfaction of the sub-judge. Apparently the facts are altogether on different premise as they had sought the permission to leave the country for traveling abroad in connection with their business.