'Undertaking' in a court is a guarantee and its breach is contempt: High court

NAGPUR: While dismissing case of a senior citizen and her two sons, Bombay high court'sAurangabad bench has ruled that "undertaking" to a court means "guarantee or promise" and itsbreach will invite contempt. "The word 'undertaking' has been equated with a guarantee or promise to a court to act in certain manner. The breach of the undertaking as far as personal action is concerned, may entail into an action forcontempt and if related to property, then execution as against the property," a single-judge bench of Justice MT Joshi ruled.

The petitioners- Vimal Kabre and her two sons Vinay and Mahendra - had moved the court seeking to quash the undertaking given by them to seek release of their father Narayan Kabre on bail. Their father was chairman of a cooperative bank in Erandol in Dhule and had allegedly duped depositors. He was booked for various offences and his bail plea was rejected by Jalgaon Sessions Court. He then challenged this verdict in high court.

The octogenarian was, however, admitted to ICU on account of poor health. His sons then requested the court to grant him bail and had given an undertaking on February 8, 2011, that they would not withdraw Rs31.74 lakh kept by him in names of many family members till recovery of dues was made. They also agreed that they would not try to sell their house until all cases against their father were disposed of. After accepting this undertaking, high court granted bail to their father on a surety of Rs50,000.

Narayan, however, passed away on March 21 last year after which the sons moved the high court contending that undertaking given by them for securing bail of a person didn't stand as he no longer existed. They argued that there was no provision to bind the legal heirs by conditions passed in a criminal application for a limited purpose of securing presence of the accused. No criminal liability could be passed upon a legal heir or legal representative under any circumstance. The legal heirs could not be penalized, they said.

Justice Joshi noted that undertaking was a formal promise or pledge entered into by a person and if it was given to the court then additionally it was a promise to act in a particular manner. "It is necessary to bear in mind that while deceased and present applicants gave an undertaking, the court, additionally imposed certain conditions for his release on bail. The undertaking, therefore, was not a 'condition' as has been sought to be canvassed by the applicants but is an undertaking given to the court which would expire only on fulfilling the accepted contingency," the judge said.