A CRITICAL STUDY ON BAIL CONDITIONS

Introduction :

In this article, the law relating to conditions that can be imposed while granting bail and anticipatory bail with the aid of the decided cases has been discussed.

Discussion :

Bail – meaning : As per Blank’s Law Dictionary – (1) To obtain the release of (oneself or another) by providing security for future appearance. (2) To release (a person) after receiving such security. (3) To place (personal property) in someone else’s charge or trust.

Article 21 of Constitution of India says that no one can be deprived of his own liberty except under procedure established by law.

Bail is rule and jail is exception as per the decided cases. It is pertinent to be pointed out here that at the time of granting bail / anticipatory bail some conditions are imposed, making the bail order un executable. Hence, this Article pointing out the conditions that can be imposed and the relevant laws and judgments in this regard.

Sections 437(3), 438(2), 439(1)(a), 440 and 445 of Cr.P.C., are the relevant provisions of law regarding imposing conditions while granting bail or anticipatory bail, hence the same is extracted hereunder.

Section 437(3) Cr.P.C. – When a person accused  [the Court shall impose conditions, -

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not 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,

and may also impose, in the interests of justice such other conditions as it considers necessary].

Section 438(2) Cr.P.C. – (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including

 

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, 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;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail was granted under that section.

Section 439(1)(a) Cr.P.C. – (1) A High Court or Court of Session may direct –

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section:

Section 440 Cr.P.C. – Amount of bond and reduction thereof – (1) The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.

(2) The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced.

Section 445 Cr.P.C. – Deposit instead of recognizance. – When any person is required by any Court or officer to execute a bond, with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond.

It is pertinent to point out here that though the above said provisions of law does not speak about what are all the conditions that can be imposed while granting bail, the conditions shall not be onerous one. Now, some Courts are imposing conditions like deposit of huge money and to produce blood sureties, to produce original deeds and to do some work as a pre-condition for grant of bail. Hence, it has necessitated to compile the decisions on the point.  

 

Whether accused can be directed to deposit cash as security for grant of bail?

(1) 1[Thiruvasagam Vs. State – It has been held that “In a case where false or fictitious complaint has been made against an innocent person, would it not amount to grave injustice by directing such a person who has been detained in jail or apprehending arrest to deposit some amount as a pre-condition for grant of bail or anticipatory bail? Furthermore, the Court granting such orders cannot step into the shoes of the Investigating Authorities and assume that the accused had committed an offence and thereby, impose onerous conditions” and taking into consideration of other facts and placing reliance on the Supreme Court judgment, onerous condition to deposit Rs.1,00,000/- was set aside.

(2) 2[Amaladoss Vs. State ]

In this case also a pre-condition to deposit huge amount of money was set aside by the Madurai Bench of Madras High Court.

(3) Following 3[Munish Bhasih Vs. State (NCT of Delhi) – The Hon’ble Allahabad High Court reported in 4[Makkan Kant Sharma Vs. Union of India held that the Court while releasing the accused on bail impose any condition that condition cannot be so harsh, onerous, excessive or unjust which will amounts to frustrating the very purpose of grant of bail.

(4) 5[ Sohanlal Juneja Vs. State of Punjab ]

While granting interim protection u/s. 438 Cr.P.C., the High Court directed the accused to deposit Rs.10 Lakhs with the complainant. The High Court had not considered the relevant aspects and also not indicated any reason as to why it felt necessary to direct the accused to deposit such a huge amount, the matter was remitted back to High Court for fresh consideration.

(5) 6[Sakthivel Vs. State]

In the above case, it has been held that though co-accused has been granted bail with the condition to deposit money, the same condition cannot be imposed to co-accused without ascertaining his financial capacity.

1. 2018-1 LW (Crl.) 102

2. 2015 MLJ (Crl). 471

3. AIR 2009 SC 2072

4. 2011 Crl.L.J. 3388

5. AIR 2007 SC 136 : 2007 Crl.L.J. 303 SC.

6. 2015(2) MWN (Cr.) 438

“Para 18. – It will be an unequal treatment. It will be against the Principle of Equality before law because equals only should be treated alike and not unequals. It is violative of Articles 14 & 21, Constitution of India and it will be ‘uneasonable’, ‘unjust’ and ‘inequitable’ and it will thus militate against the principles laid down by the Hon’ble Supreme Court in 7[Menaka Gandhi Vs. Union of India ].

In the following cases also, the Hon’ble Supreme Court has held that the imposition of condition to deposit huge money is an unreasonable condition and therefore set aside.

8[ Ramathal & others Vs. Inspector of Police and another

9[ Sandeep Jain Vs. National Capital Territory of Delhi.

10[ Amarjit Singh Vs. State of National Capital Territory of Delhi.

Whether property documents can be directed to be produced?

In 11[Sagayam @ Devesagayam Vs. State, the Inspector of Police, Chetpet Police Station, Chennai, it has been held that the Court cannot demand production of property documents from the accused and surety. Magistrate or a Sessions Judge or any Court demanding production of property documents or R.C. Book or any other documents to show proof of property either movable or immovable with respect to the bail bond or surety bond are against the law. It is against Constitution of India.

Conclusion :-

Thus, it is made clear that conditions like deposit of unreasonable amount or directing to produce original property documents are declared by the Hon’ble High Court and Hon’ble Supreme Court as onerous conditions, which amounts to denial of bail and so those conditions ought not to be imposed.

7. AIR 1978 SC 597

8. (2009)12 SCC 721

9. (2000)2 SCC 66

10. (2009)13 SCC 769

11. 2017-1 LW (Crl.) 800