New Delhi: From serving cows to chanting ‘Bharat Mata Ki Jai’, recent instances have come to light where courts have imposed “strange” and “absurd” bail conditions on undertrials. While some of them have been challenged before higher courts and, eventually, struck down, others remain in operation.
For instance, terming it as “strange”, the Supreme Court on 21 October struck down bail conditions imposed by the Delhi High Court that required the petitioner to arrange his own accommodation in the national capital for the duration of his trial. The apex court also directed him to report to the police three times a week.
In Akbal Ansari vs. State (NCT of Delhi) ruling, a two-judge bench of Justices Abhay S Oka and Augustine George Masih, said, “The High Court has recorded a finding that the appellant is entitled to be enlarged on bail. However, the High Court has imposed a strange condition of directing the appellant to arrange an accommodation in Delhi and that the appellant should reside in Delhi till the conclusion of the trial. Such a condition cannot be said to be a condition of bail.”
While the court set aside these conditions, it imposed a new one that said that Ansari would report to the local police on the first and fifteenth of every month between 10-11 am.
This is not the first time that the apex court has struck down such “onerous” or difficult bail conditions. ThePrint looks at instances where courts imposed such conditions, struck down others, and the reasons they gave for it.
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Bail conditions: ‘Arbitrary’ to ‘fanciful’
In one example of unusual bail conditions, the Madhya Pradesh High Court granted bail to a man accused of chanting “Pakistan Zindabad” on 15 October, according to an ANI report. However, the court allowed his release on the condition that he visit the police station twice a month, salute the national flag 21 times and chant the slogan ‘Bharat Mata ki Jai’ each time till his trial concludes.
In June 2022, the Allahabad High Court granted bail to a man accused of cow slaughter, while imposing a condition that he serve cows for one month at a gaushala (cowshed) following his release from jail.
In the past, the Supreme Court has struck down many bail conditions imposed by various high courts across the country on grounds of arbitrariness, lack of fairness, and violation of the accused’s fundamental rights, among others.
For instance, on 18 March 2021, a bench of Justices A. M. Khanwilkar and S. Ravindra Bhat set aside a bail condition set by the Madhya Pradesh HC directing a man accused of sexual assault to get a rakhi tied on his wrist by the victim.
“Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the CrPC. In other words, discussion about the dress, behaviour, or past ‘conduct’ or ‘morals’ of the prosecutrix, should not enter the verdict granting bail,” the court said in its order.
In March this year, the Supreme Court dealt with a plea filed by Odisha-based political leader and former mayor of the Berhampur Municipal Corporation, Siba Shankar Das, who challenged a bail condition set by the Orissa HC restricting him from participating in political activities. It struck down this bail condition, saying that “imposition of such conditions would breach the fundamental rights of the appellant”.
Similarly, in July this year, the top court held that “imposing any bail condition which enables the Police/Investigation Agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21”.
The bench of Justices Abhay S. Oka and Ujjal Bhuyan was hearing an appeal against Delhi HC’s interim bail conditions that directed, Frank Vitus, a Nigerian man who was being prosecuted under the Narcotic Drugs and Psychotropic Substances Act, 1985, to drop a pin on Google Maps to ensure his whereabouts are shared with the investigating officer in the case shall be deleted a bail condition.
In its 25-page ruling, the Supreme Court also held that conditions of bail cannot be “arbitrary” and “fanciful”, observing that “keeping such constant vigil on the accused by imposing drastic bail conditions will amount to keeping the accused in some kind of confinement even after he is released on bail”.
Definition of ‘onerous’ bail conditions varies
On 23 August 2023, in a decision delivered by a bench of Justice Bhat and Aravind Kumar, the court said, “The grant of bail subject to onerous conditions is ordinarily in exceptional circumstances and cannot be as a matter of course.”
Besides this, the court has deprecated the imposition of such “onerous conditions” in the 2022 ruling in “Subhash Chouhan v. Union of India”.
More recently, on 18 July, a bench of Justices JB Pardiwala and Bhuyan said that “courts cannot impose freakish conditions while granting bail. Bail conditions must be consistent with the object of granting bail. While imposing bail conditions, the constitutional rights of an accused who is ordered to be released on bail can be curtailed only to the minimum extent required”.
However, the definition of what courts consider “onerous” can also vary from case to case.
For instance, when the top court was releasing former Delhi chief minister Arvind Kejriwal in September, it said that certain bail conditions would apply to him, such as not being allowed to visit the Delhi Secretariat or the Chief Minister’s Office. He was also barred from making public comments about his case or signing any official files unless necessary for obtaining the Lieutenant Governor’s clearance or approval.
Similarly, in former Delhi deputy CM Manish Sisodia’s case, in August, the top court allowed him bail, subject to conditions like depositing his passport with the police station, paying a Rs 10 lakh bond, and reporting to the Investigating Officer (IO) twice a week.
Speaking to ThePrint, advocate Sahil Yadav said, “The Supreme Court, in multiple judgements, has said that the judicial discretion of courts while granting bail should not be exercised in a way that is onerous on the applicant, and neither should it be punitive in nature.”
“The presumption of innocence is paramount, which needs to be balanced with the state and the complainant’s interest in a fair and effective process of trial. Different cases and circumstances have yielded multifarious decisions where bail applications were disposed of with novel and unreasonable conditions, such as tying a rakhi or finding accommodation in Delhi,” he further said.
However, he added that the actual considerations of bail end up being “shortchanged or blown out of proportion, causing a severe violation of the accused’s rights”.
Underlining a common practice he has personally witnessed in cheating cases, before the trial courts, Yadav said, “Many times the trial courts insist in cases of cheating that a substantial part of the allegedly cheated amount should be deposited as a condition for granting bail. Serial cheaters end up paying the amount and take advantage of the burden on courts and the helplessness of the victim, whereas many accused persons are wrongfully asked to deposit their life savings to secure their freedom so as to adequately defend themselves.”
How bail is described in new criminal laws
Although the term ‘bail’ had not been defined under the Criminal Code of Procedure (CrPC) or the Indian Penal Code (IPC), Section 2(b) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), describes it as the “release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond”.
The Black’s Law Dictionary, the foremost authority on legal definitions, also defines it as “releasing a prisoner due to a deposit of a security” or an amount decided by the court. However, the person must still appear in court since bail is usually granted before the trial reaches its conclusion.
Criminal offences are divided into bailable and non-bailable offences. The former relates to less serious offences such as theft, mischief, and defamation, where the police need a warrant to arrest someone and bail is relatively easier to get. However, the latter entails more serious offences such as murder, rape, and dacoity, where arrests can be made by the police without a warrant and bail is much harder to get.
However, it is up to the courts to decide whether or not someone is entitled to be released on bail and, if so, what conditions to impose. In its 17 December 2021 decision, a bench of Justices L. Nageswara Rao, B. R. Gavai and B. V. Nagarathna, “Ultimately, the court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the accused on the one hand and ensuring purity of the trial of the case on the other.”
When bail conditions are imposed
Section 437(3) of the CrPC states that for offences punishable with seven years of imprisonment or more, or in cases involving abetment, conspiracy, or an attempt to commit any such offence, a person’s release on bail will require the court to impose certain conditions.
It adds that the person released on bail shall, according to the conditions of the bail bond, attend court for the completion of the trial. Such a person cannot commit an offence similar to one he is accused or suspected of.
Finally, the person being released on bail cannot “directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence”. The court may also impose, in the interests of justice, other conditions it considers necessary.
While weighing bail conditions, courts look at three “primary conditions”, Delhi-based criminal lawyer Sahil Yadav told ThePrint. “The first is to ensure the presence of the accused before the trial court. Secondly, it is to ensure that there is no threat of tampering with the evidence or the investigation in the ongoing case. Finally, it has to be seen that the accused does not threaten, influence, or overawe the witnesses in the case.”
(Edited by Sanya Mathur)