While drawing clear red lines for Magistrates beyond which they should refrain from treading as a matter of prudence, the Kerala High Court in a most learned, laudable, landmark and latest judgment titled Rajesh @ Malakka Rajesh & Anr v. State of Kerala in CRL. MC No. 3385 of 2023 and cited in 2023 LiveLaw (Ker) 271 that was pronounced as recently as on May 30, 2023 has reiterated the long held position that while granting statutory bail, the Magistrate cannot impose any other condition for deposit of cash security. It must also definitely be mentioned here that the Single Judge Bench of Hon’ble Mr Justice Raja Vijayaraghavan V relied upon the Apex Court decision in Saravanan v State represented by the Sub Inspector of Police wherein it was held clearly, cogently and convincingly that while granting default bail/statutory bail under Section 167(2) CrPC, the condition of deposit of amount cannot be imposed.

It also certainly deserves mentioning that the Bench noted that the Apex Court had clarified in the said decision that the only requirement for getting the default bail/statutory bail under Section 167(2) CrPC is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail.

At the very outset, this remarkable, robust, refreshing, rational and recent judgment authored by the Single Judge Bench of Hon’ble Mr Justice Raja Vijayaraghavan V of Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 that:
This petition is filed challenging Annexure-1 order passed by the learned Judicial Magistrate of First Class-I, Alathur, in Crl.M.P. No. 648/2023. The grievance of the petitioners concerns the direction issued by the learned magistrate to furnish cash security while granting statutory bail.

As we see, the Bench then points out in para 2 of this brilliant judgment that, The petitioners herein are the accused Nos. 1 and 2 in Crime No. 1103/2022 of the Vadakkancherry Police Station. They are accused of having committed offenses punishable under Sections 406 and 420 r/w Section 34 of the IPC.

To put things in perspective, the Bench then envisages in para 3 that:
As the final report was not laid within the statutory period, an application for statutory bail was preferred and the same was allowed. One of the conditions imposed by the learned magistrate was a direction to the accused to deposit a sum of Rs. 50,000/- as cash security for appearance. In order to justify the direction to deposit cash security, the learned Magistrate has relied on a judgment rendered by the Apex Court in Sumit Mehta v. State [2013 (2) KLD 677] and also the judgment rendered by this Court in Lekha v. State [2019 (3) KLJ 825].

As it turned out, the Bench then observes in para 4 that:
Sri. Dheeraj Rajan, the learned counsel appearing for the petitioners, submits that the judgments relied on by the learned Magistrate relate to the imposition of conditions while granting anticipatory bail. According to the learned counsel, in the instant case, the petitioners herein were granted default bail, and in view of the law laid down by the Apex Court in Saravanan v. State represented by the Sub Inspector of Police [2020 (9) SCC 101], there was no justification on the part of the learned Magistrate in imposing a condition that the petitioners shall furnish cash security.

Needless to say, the Bench then states in para 5 that:
I have considered the submissions advanced and have gone through the records.

Most significantly and so also most remarkably, it must certainly be noted that while delving in the nitty gritty of a relevant case law in this regard, the Bench then discloses in para 6 that:
In Saravanan (supra), had occasion to answer the very question posed in this case and had ordered as under:

Having heard the learned counsel for the respective parties and considering the scheme and the object and purpose of default bail / statutory bail, we are of the opinion that the High Court has committed a grave error in imposing condition that the appellant shall deposit a sum of Rs.8,00,000/- while releasing the appellant on default bail / statutory bail. It appears that the High Court has imposed such a condition taking into consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit Rs.7,00,000/-.

However, as observed by this Court in catena of decisions and more particularly in the case of Rakesh Kumar Paul (supra), where the investigation is not completed within 60 days or 90 days, as the case may be, and no chargesheet is filed by 60th or 90th day, accused gets an indefeasible right to default bail, and the accused becomes entitled to default bail once the accused applies for default bail and furnish bail. Therefore, the only requirement for getting the default bail / statutory bail under S.167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail.

No other condition of deposit of the alleged amount involved can be imposed. Imposing such condition while releasing the accused on default bail / statutory bail would frustrate the very object and purpose of default bail under S.167(2), Cr.P.C. As observed by this Court in the case of Rakesh Kumar Paul (supra) and in other decisions, the accused is entitled to default bail / statutory bail, subject to the eventuality occurring in S.167, Cr.P.C., namely, investigation is not completed within 60 days or 90 days, as the case may be, and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail.

Finally and far most significantly, the Bench then concludes by holding in para 7 that:
As held by the Apex Court, no other condition of deposit of the amount involved can be imposed while granting statutory bail as it would frustrate the very object and purpose of default bail under S.167(2) of the Cr.P.C. The judgments relied on by the learned Magistrate were not applicable to the facts and circumstances. In that view of the matter, the petition is only to be allowed. This petition will stand allowed. Condition No. 2 in Annexure-1 order will stand set aside. All other conditions shall remain as such.

All said and done, what can definitely be derived from the fruitful elaboration as stated above is that the Kerala High Court has most rationally reiterated that Magistrates cannot impose condition to deposit cash security while granting default bail. So it thus merits no reiteration that all the Magistrates must definitely pay heed to what the Kerala High Court has laid down so very commendably, cogently and convincingly in this leading case. Of course, there is no single valid reason as to why all the Magistrates should not adhere in totality to what the Kerala High Court while citing the relevant Apex Court rulings has held so very brilliantly in this leading case. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh