The apex court recently held that “restraining someone from taking part in political activities as a condition precedent for bail would be violative of their fundamental rights” while quashing a condition imposed by the Orissa High Court. Such conditions imposed by lower courts are setting some bizarre precedents 

By Dr Swati Jindal Garg

Desmond Tutu, the South African theologian known for his work as an anti-apartheid and human rights activist, has rightly said: “Fundamental rights belong to the human being just because you are a human being”. Reiterating the same, the Supreme Court recently held that “restraining someone from taking part in political activities as a condition precedent for bail would be violative of their fundamental rights”. 

A bench of Justices BR Gavai and Sandeep Mehta said this in its recent order while quashing a condition imposed by the Orissa High Court, which said that “the appellant shall not create any untoward situation in public and shall not be involved in any political activities, directly or indirectly”.

The concerned High Court had imposed the violative condition while Granting Bail to Odisha BJP leader Siba Shankar Das who has also been a former mayor of Berhampur, and had joined the BJP after quitting the Biju Janata Dal. The High Court said: “It needs to be mentioned here that according to the allegations made against the appellant, he was involved in 57 cases earlier. Upon hearing both parties and considering the present situation, as it remains a fact that he was not only involved in other cases, but also murderous attempt was made upon him, it would be unjustified to modify the condition of the bail, permitting the appellant to take part in political activities which would be in further deterrence of law and order situation in the locality involving the appellant. As such, this Court is not inclined to modify the condition as prayed for and accordingly the interim applications are rejected.”

Das’ counsel had prayed before the apex court that his client being a political person, who was earlier elected as Mayor of the Berhampur Municipal Corporation, may be permitted to take part in political activities in view of the ensuing elections. The state government opposed the request and said that Das after being released on bail was involved in new cases and a murder attempt was made on him. 

The same was corroborated by a police officer who had filed an objection certificate, which said that two new cases were registered at the Gosaninuagaon police station against Das. The police also registered an FIR on Das’ complaint that he was attacked by some miscreants while he and his minor son were returning home and that he had escaped another attack on his life in January 2018. “Hence, the petitioner is always under a life threat and lifting of the condition, as prayed for by the petitioner, at this juncture, shall in all probability put the administration to enough difficulties,” the state said while opposing his bail plea.

It needs to be understood that in case of bailable offences, bail is a matter of right on the part of the accused, while in case of non-bailable offences, bail is a matter of discretion to be exercised by the court. As per Section 437(3) of the CrPC, the court while granting bail, may impose such conditions as prescribed and in furtherance may also impose any such condition as it considers necessary in the interest of justice. The court has discretionary powers to impose any such conditions as it considers necessary in the interest of justice, keeping in mind that such discretion cannot be exercised in an arbitrary manner overlooking the settled principle of law.

Over the years, there have been numerous instances where the higher courts have had to interfere due to the imposition of onerous conditions of bail rendering it impossible for the litigant to fulfil the same. While some conditions talk about deposit of money, others tend to restrict the freedom of the person involved making them against the set tenets of law. 

In the case of Sumit Mehta vs State of NCT of Delhi, the High Court had granted bail to an accused on a condition to deposit Rs 10,000,000 as a fixed deposit in the name of the complainant in any nationalized bank and the same was held onerous and unreasonable by the Supreme Court as it was held to be a feeble condition having no nexus with the objective of granting bail. It was held that judicial discretion of imposing condition while granting bail must be exercised in such a manner that it does not hinder the trial pending before the competent court.

Then there are cases that can not only be termed strange, but also onerous, including the one where the Jharkhand High Court in Som Marandi vs State of Jharkhand granted bail to the applicant on the condition that he shall deposit Rs 35,000 in PM CARES Fund and also download Aarogya Setu App with immediate effect. 

Further, another almost similar condition was imposed by the Bombay High Court while granting bail to an applicant accused of manhandling a Bombay Municipal Corporation worker. The Court asked the applicant to deposit Rs 25,000 in CM Relief Fund. 

The Delhi High Court in Dheeraj Malhotra vs State while granting bail imposed a condition that applicant shall make video call every Friday to the investigating officer and shall also “drop a pin” on Google Map so that investigating officer can verify applicant’s location!

The Madhya Pradesh High Court in Arvind Patel vs State of M.P[v] imposed a condition on the accused to install LEDs at district hospital worth at least Rs 25,000  manufactured in India or abroad except China. Further, in another matter Vikram vs State of M.P[vi], where the accused was charged under Section 452, 354(A), 354, 323 and 506 of IPC, the Court while granting bail imposed a condition on the accused to tie a rakhi thread on the complainant and also tender Rs 11,000 to her and Rs 5,000 to her child as a part of ritual gift.

There are also certain other bail conditions that have been imposed that boggle the human mind. For example, in another case, the Court imposed a condition on the accused to remove himself from all WhatsApp and Facebook groups and not use any social media platform for two months as a part of digital detoxification. Further the Court in another case had imposed a condition on accused to register himself as Covid-19 warrior and to do all the needful work as assigned by district magistrate with prescribed precautions to serve the society during the pandemic.

In Munish Bhasin vs State (Government of NCT of Delhi), taking into consideration all these vague and baseless conditions being imposed by the courts while granting bail, it was categorically held by the Supreme Court that while granting bail, the competent court cannot impose any freakish conditions. The same view was reiterated in the case of  Sanjay Chandra vs Central Bureau of Investigation by the apex court where it was held that objective of imposing condition is to secure attendance of accused during pendency of trial and is neither punitive nor preventive.

In legal parlance, even the set tenets of law say that an accused is innocent until proven guilty, but such conditional order directing an accused person to deposit a particular sum of money being part of alleged amount of misappropriation done by accused hinders the independence of trial as after going through such bail order it is obvious that trial court shall make unwarranted presumptions against the accused in respect of his innocence. In other words, the trial court may assume that if the accused has paid up the money, he might have taken it.  Hence, it is responsibility of the court while granting bail to ensure that no such condition is imposed on the accused which frustrates the principle of presumption of innocent until proven guilty.

Imposing such conditions also go against the principle that it is bail and not jail that is the rule. Furthermore, a helpless accused person accepting such onerous conditions also invariably raises the presumption in the minds of the trial court as well as the public that he may have committed the offence after all! Not only is such a conditional order premature, it is also against the principle of natural justice.

The primary purpose of imposition of conditions for bail have been to secure the participation of the accused in the trial process. Surety or bond are sufficient  enough means, but without prejudice to the said submission, if the competent court deems fit in the interest of justice, it can impose any other condition on the accused, albeit, only after justifying the same by providing adequate reason in its order which unfortunately is not being done by some courts today. 

Given the fact that fact is always stranger than fiction, the apex court has not laid down any straitjacket formula or an exhaustive list of conditions which can be imposed by a competent court while granting bail and has left this discretion to be exercised by competent court itself, but going through the types of conditions being imposed, it seems that such discretion is not being exercised by competent court judiciously.

The courts today are imposing conditions which have no plausible link with the objective of granting bail and such laxity needs to be looked into immediately so as to avoid injustice being done to the accused who are not given adequate opportunity of defending themselves due to the imposition of such conditions. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi