While fully, firmly and finally rejecting the increasing trend among not only the Trial Courts but even among the High Courts to seek pre-condition of furnishing a bank guarantee for grant of bail, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Makhijani Pushpak Harish v The State of Gujarat in Criminal Appeal No. 1193 of 2023 (@ SLP (Crl.) No. 2868/2023) that was pronounced as recently as on April 19, 2023 has set aside an order whereby a pre-condition of furnishing bank guarantee was imposed on the accused by the Trial Court and the High Court while granting bail. Quite naturally, as the Bench has regarded such practice of pre-condition of furnishing bank guarantee to be unsustainable and bad and so accordingly the Bench has set aside the pre-condition which is in the interest of justice also in the longer run! It must be also mentioned here that the Bench of Apex Court comprising of Hon’ble Mr Justice Krishna Murari and so also Hon’ble Mr Justice Ahsanuddin Amanullah while adjudicating an appeal filed in this same case has most sagaciously declined to divert from its stand taken in previous similar matters wherein we must note the Court had held that condition of pre-deposit cannot be imposed while granting bail.

At the very outset, this brief, brilliant, bold and balanced judgment sets the ball in motion by first and foremost putting forth in para 1 that:
Leave granted.

Needless to say, the Bench then states in para 2 that:
We have heard learned counsel for the parties.

As we see, the Bench discloses in para 3 that:
On being arrested on the basis of complaint filed by the Superintendent(Prevention) of Central GST and Central Excise, Vadodara, for the offences punishable under Sections 69, 132(1)(a) of the Central Goods and Services Act, 2017 (for short ‘CGST’), the appellant made an application under Section 437 of the Code of Criminal Procedure, 1973 for seeking bail before the Court of Chief Judicial Magistrate, Vadodara.

Be it noted, the Bench notes in para 4 that:
The bail was granted subject to the condition that the appellant submits a bank guarantee of an amount of Rs. 3 crores along with certain other conditions.

To put things in perspective, the Bench envisages in para 5 that:
Aggrieved by the imposition of condition for deposit of bank guarantee, as a pre-deposit for a bail, the appellant approached the High Court by filing Criminal Miscellaneous Application No. 710 of 2023 which came to be disposed of by the order dated 12.01.2023 impugned herein, whereby the High Court modified the condition of furnishing bank guarantee of an amount of Rs. 3 crore by reducing it to Rs. 1.5 crore.

Most remarkably, the Bench then clearly states in para 6 that:
Such pre-condition of deposit of an amount or furnishing a bank guarantee has been the subject matter of consideration by this Court in a number of cases, where condition of pre-deposit has been held to be bad.

While citing the relevant case law, the Bench points out emphatically in para 7 that:
Reference may be made to an identical matter in Criminal Appeal No. 186/2023, Subhash Chouhan Vs. Union of India, this Court vide Judgment dated 20.01.2023 set aside the order passed by the High Court imposing a condition of deposit while granting bail to the appellant therein.

It is worth noting that the Bench then notes in para 8 that:
It is also pertinent to note that in the said case, the learned Additional Solicitor General appearing for the Union of India/State had fairly stated that such a condition cannot be imposed while granting bail. The statement made by the learned Additional Solicitor General is recorded in the judgment and order dated 20.01.2023.

While continuing in the same vein, the Bench then hastens to add in para 9 stating that:
The same view has been reaffirmed by this Court in another similar case, Criminal Appeal No. 523/2023, Anatbhai Ashokbhai Shah Vs. State of Gujarat & Ors. vide judgment and order dated 17th February, 2023.

As a corollary and quite ostensibly, the Bench then minces absolutely no words to hold indubitably in para 10 that:
Facts of the present case being identical to the facts of the aforesaid two Criminal appeals, we see no reason to deviate from the view taken in the aforesaid two cases.

Far most significantly, while adding more to it, the Bench then while continuing forward in a similar manner minces just no words whatsoever to hold unequivocally in para 11 that:
Following the reasons given in the aforesaid judgments and orders, we are of the considered opinion that pre-condition of furnishing bank guarantee imposed by the High Court is not liable to be sustained and is hereby set aside.

What’s more, the Bench then lays down in para 12 holding that:
The rest of the conditions imposed for grant of bail by the Chief Judicial Magistrate and upheld by the High Court are hereby sustained.

Furthermore, the Bench then directs in para 13 that:
Accordingly, it is directed let the applicant be released on bail. The appeal, accordingly, stands allowed.

Finally, the Bench then concludes by holding in para 14 that:
Pending application(s), if any, shall stand disposed of.

All said and done, it is now indisputably clear that seeking pre-deposit of the bank guarantee for the grant of bail by the Trial Courts and High Courts is unsustainable and bad which cannot be justified. It thus definitely merits no reiteration that all the Trial Courts and so also all the High Courts must definitely pay heed to what the Apex Court has held so very clearly, cogently and convincingly 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.