Sunday, June 26, 2022

The Questions of Bail

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Judges across the country seem to be imposing some peculiar conditions on bail applicants—however beneficial or good-intentioned. Are such conditions actually legal?

By Neeraj Mishra

The Supreme Court is in the process of considering a bail condition imposed by the Allahabad High Court on petitioner Sachin Chaudhary. The High Court granted him bail on condition that he not use social media. The apex court will now decide whether such a condition can be imposed. The ruling will have far-reaching impact on decisions being made by various courts in the country while granting bail.

The Indore bench of the Madhya Pradesh High Court recently, on the eve of Raksha Bandhan, imposed a bail condition that the accused ask the complainant to “tie a Rakhi band to him with the promise to protect her to the best of his ability for all times to come”. It further ordered that the entire process be videographed. The petitioner Vikram was accused of offences under Sections 452, 354, 323 and 506 which are to do with criminal intimidation or assault. The Court also ordered a payment of Rs 16,000 to the family of the woman who alleged that he had attempted to molest her.

Various benches of the Madhya Pradesh High Court have been imposing peculiar conditions for bail. They range from working as a Covid-19 warrior for a certain duration to supplying a TV set worth at least Rs 25,000 to a Covid-19 hospital. Even more peculiar, the judge said that the TV set should be “non-Chinese”.

Since the statutes are silent on conditions that can be imposed upon an accused and his surety regarding bail, it is open to judicial interpretation. Bail is not defined anywhere in the CrPC but appears in various forms, and Sections 436-439 deal with how bail can be granted, including anticipatory bail. It does not say what bail per se is, so we have to go back to English Common Law to understand what bail means. In its most basic form it only means provision of a surety by the accused that he will be present whenever the court requires him to be.

In other words, bail is the delivery of the arrested person to his sureties upon their giving security for his appearance at a designated place and time, for the jurisdiction and judgment of the court. The surety is termed “bail” because the person arrested or imprisoned is placed in the custody of the surety who becomes the bailer for his due appearance when required. Surety must be those persons who have authority to bail the arrested person to appear before the court on a certain date. It is upon the bonds of those sureties that the person arrested or imprisoned is bailed, i.e., set at liberty until the day appointed for his appearance.

The effect of granting bail is not to set the prisoner free from jail or custody, but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear in the court at a specified time and place.

The CrPC breaks it down further into bailable and non-bailable offences. Under the former, bail is considered a right and the accused can exert it. Under the latter, the right to exert does not exist as the courts have been vested with “discretion”. At any rate, the primary purpose of  bail is to ensure attendance of the accused whenever wanted. He may or may not provide sureties, that is left to the discretion of the court or the police wherever applicable.

This happened after the order of Justice Bhagwati in Husnaara Begum vs Home Secretary (1980). It was brought to the notice of the court that the jails were overflowing because several million undertrials accused of petty offences were kept in jail without bail because they could not provide surety. Justice Bhagwati ordered that personal surety of the accused should be sufficient and the judges should use their discretion in such matters relative to offence committed and the history of the accused.

Nevertheless, the standing observation about courts today is that bail is not granted easily. On an average of the 100 such application for bail that a sessions court is likely to receive in a month, bail is granted in only about ten percent of the cases. And this is regarding the bailable sections. Of the non-bailable offences, the matter is usually decided by the High Court of a state. The sessions courts will grant bail in less than two percent of such cases. This may be partly due to the fact that under Section 437 (4), the court has to record in writing why bail has been granted or refused.

While the courts have been known to impose conditions for bail they have overwhelmingly been limited to ensuring the presence of the accused. In bail law, the presumption is of both types. The accused is prima facie presumed guilty so can be denied bail and he has to prove his own innocence. At the same time, an accused is presumed innocent until proven guilty so bail is generally considered his right. Justice Bhagwati had famously said, “Bail not jail” should be the guiding principle for use of discretion.

This imposing of various conditions appears to be a fairly recent phenomenon and the apex court will have to take a call on this. Ordering a “non-Chinese” TV prima facie seems out of line and ordering payment of money to the accuser’s family may become an admission of guilt during trial. Most petitioners will not go to court against a positive bail order for understandable reasons and will rather comply with the advice of their advocates but Chaudhary seems to be thinking otherwise and has approached the Supreme Court.

Under US law, community service as a punishment is considered objective and is often used even in bail matters. What the Indore bench may be trying to institutionalise is the US practice of ordering community service. But even in the US, where the judges have far more discretion in such matters, there are three anvils on which their order is tested:

  1. The order of community service must bear resemblance to the crime. For instance, community service at a Covid-19 centre cannot be ordered for risk of infection to someone accused of shop lifting.
  2. It should serve as a deterrent to others.
  3. It should provide at least a symbolic restitution of the harm caused to the accuser.

The question now is whether Indian courts, eager to set examples and provide exemplary bail conditions, will take note. It will probably happen only after the apex court provides reasonable guidelines for bail cases, otherwise the silence of the statutes will continue to be given wider interpretation for bail conditions.

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