Mr. B.L. Pavecha, Senior Advocate, Indore
Section 438 Cr.P.C. provides for grant of anticipatory bail and confers powers upon the High Court as also on the Court of Session to grant it. Similarly Section 439 Cr.P.C. confers powers upon the High Court as also on Court of Session to grant bail and to direct release of a person accused of an offence and is in custody. Powers of the High Court and the Court of Session under both the provisions are coextensive and are of similar amplitude.
Such bail applications are usually first moved before the Sessions Court and if they are rejected there then an application for same relief is moved in the High Court. In recent years there is a growing tendency in the subordinate judiciary to reject bail applications even in deserving cases and, therefore, the person in custody is required to come to High Court with a prayer for grant of bail in a vast majority of cases. The number of bail applications filed in the High Court is growing every year and almost in every High Court and is a strain on its lengthy cause list.
While granting bail under Section 438 Cr.P.C. or under Section 439 Cr.P.C. the High Court and the Sessions Court have ample powers to impose conditions on the applicant as provided by Section 437(3) of Cr.P.C. to ensure the attendance of the applicant during trial, to prevent repetition by the applicant of the same offence and to prevent the applicant from tampering with the evidence. This provision also arms the Court with discretion to impose in the interest of justice such other conditions as it considers necessary.
When a bail is granted to a person in custody by the Court usually he is required to execute a bond binding himself to regularly attend all dates of hearing during trial, to cooperate in the proceedings and not to tamper with evidence in any manner and not to commit any offence. Usually he is also required to furnish security in the amount mentioned in the bail order for due compliance of the terms of the bail bond. The Court has discretion to dispense with the requirement of furnishing security and may direct release of the applicant on execution of his personal bond only. Customarily bail orders are passed by Courts day in and day out on these conditions only. In some cases further conditions such as ban on foreign travel and deposit of passport in the Court or to remain out of a particular district or state throughout the trial are also imposed in order to ensure attendance or to protect the fairness and credibility of the trial.
In recent years High Courts have started imposing conditions in bail orders which have no nexus with the crime or with the attendance of the accused during trial or with the fair conduction of the trial. This exercise is sought to be justified on the premises that the Court has ample power under Section 437(3) Cr.P.C. to impose such other conditions in the interest of justice as it considers necessary. Undoubtedly the power of the Court to impose conditions has been expressed in very wide terms but the very width of the power calls for restraint on its exercise. It cannot be exercised arbitrarily at the whim and caprice of the judge exercising it.
The applicant for bail at pre-trial or trial stage is not an offender and is presumed to be innocent until conviction is recorded against him and cannot be treated as a criminal requiring reform or deserving instant punishment. The conditions on which he is enlarged on bail must be commensurate with the objects of the provisions for bail namely to ensure his attendance during trial and to prevent him from tampering with the evidence and integrity of the trial as held by the Apex Court in the case Parvez Noordin Lokhandwalla v/s State of Maharashtra decided on 01.10.2020 (Para 14 to 19). The observations made in para 14 are pertinent and are read as under :-
“The language of Section 437(3) of the CrPC which uses the expression “any condition… otherwise in the interest of justice” has been construed in several decisions of this court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437 (3) and 439 (1) (a) of the CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail. “
An article written by Faizan Mustafa : “Strange and Arbitrary Bail Orders : Are Indian Judges Going Too Far?” available on The Wire dated 28.04.2020 gives an interesting account of some such strange conditions having no nexus with the trial or the object of the bail provisions recently imposed by the High Court of Jharkhand in bail orders. In the bail orders passed by Madhya Pradesh High Court also in recent years imposition of such strange and unheard of conditions can be seen frequently. The conditions of bail imposed in such orders vary in a wide range. They include plantation at regular intervals in public parks, cleaning the floor of court building, doing community service at a specified charitable institution, making contribution to some charity or to PM Relief Fund or donating a ventilator to a specified hospital. Further directions regarding compliance of these directions and for supervision of such compliance are also given in the bail order putting an additional strain on already overburdened registry.
Plantation, social or community service and charity are laudable if done voluntarily by a citizen but its imposition as a condition for grant of bail in a Court order is impermissible by law and is a dangerous judicial overreach. A person facing a trial for an offence is to be treated as an innocent citizen entitled to all the fundamental rights conferred by the Constitution. Plantation or community service extracted from him as a compulsion imposed on him for coming out of prison is violative of not only his fundamental rights but also a violation of statutory provisions forbidding bonded labour. Imposition of charity or donation on him under the same compulsion is clearly violation of Article 265 of the Constitution of India.
At times imposition of such onerous conditions is stated in the bail order to be with the consent of the counsel for the applicant and is sought to be justified as voluntary. This is farcical and far from reality. At the time of hearing and disposal of the bail application in High Court the applicant is not present and is behind the bars. The advocate’s first priority in such delicate situation is to see his client out of prison and he cannot afford to disagree with any suggestion made by the bench or to otherwise displease the judge simply for the fear of rejection of his bail application and as an inevitable consequence prolongation of his client’s imprisonment. It would be far from truth to treat his nod as consent and to glorify the imposition of such compulsive conditions as voluntary.
If in addition to about 750 members of higher judiciary all session judges also start imposing conditions which have no nexus with the case but generally good for the community and its welfare according to their own individual perception, there would be chaos and erosion of democracy and Rule of Law by judocrary. In addition a separate section would be required in every Court to supervise and secure compliance of such conditions.
It is interesting to note that such extraordinary conditions are imposed in bail orders passed in cases of commoners and villagers only who have no voice or public support to resist them. I have not even heard of any bail order imposing conditions like plantation, community service or charity passed on the application of any cinema star, cricketer, politician or a celebrity. In such a scenario, to borrow the language of Apex Court in Duda’s case, Article 14 of the Constitution weeps and weeps far too long and in utter silence.
Daksha Legal 