India: Bail: Considerations And Imposition Of Conditions

INTRODUCTION

Every citizen of India has a fundamental right to freedom guaranteed under Article 21 of the Indian Constitution, which specifically states, "No person shall be deprived of his life or personal liberty except according to procedure established by law." Any individual, who violates the law of the land, is bound to face consequences as per the law and in such a case, his freedom may be restricted depending upon the gravity of offence as such committed. Every accused who has been frivolously charged with the allegations of a non-bailable offence is not only entitled to a good defense but also to be released on bail, by the Court upon taking into various factors such as nature or seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the state and similar other factors. It is the solemn duty of the Court to decide the bail applications at the earliest by a reasoned order, based on the bona fides of the applicant in light of prevailing facts and circumstances.

CONSIDERATIONS AT THE TIME OF GRANTING BAIL

At the time of deciding the application seeking bail, the Court should look at the prima facie material available and should not go into the merits of the case by appreciation of evidence. At the time of grant or denial of bail in respect of a non-bailable offence, the primary consideration is the nature and gravity of the offence. While adjudicating bail applications, the Courts should only go into the question of prima facie case established for granting bail. The Court cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial. The Hon'ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital1 has stated few factors to be taken into consideration, before granting bail, namely:

i) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; ii) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; iii) Prima facie satisfaction of the Court in support of the charge.

At times certain matters require investigation for the Court to effectively decide upon the bail application, like: (i) whether there is or is not a reasonable ground for believing that the applicant has committed the offence alleged against him; (ii) the nature and gravity of the charge; (iii) the severity of the punishment which might fall in the particular circumstances in case of a conviction; (iv) the likelihood of the applicant absconding, if released on bail; (v) the character, means, standing and status of the applicant; (vi) the likelihood of the offence being continued or repeated on the assumption that the accused is guilty of having committed that offence in the past; (vii) the likelihood of the witnesses being tampered with; (viii) opportunity of the applicant to prepare his defense on merits. The Hon'ble Supreme Court in the matter of Ram Govind Upadhyay vs. Sudarshan Singh and Ors2 while considering various factors for grant of bail has analyzed the scenario where the applicant has already been in custody and the trial is not likely to conclude for some time, which can be characterized as unreasonable, but it is not necessary that bail shall be granted. The factors such as, previous conduct and behavior of the accused in the Court, the period of detention of the accused and health, age and sex of the accused also may be considered at the time of grant of bail. The Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors3, has held that, "the condition of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed." Other relevant grounds which play a vital role in deciding the bail application are - the possibility for repetition of crime, the time lag between the date of occurrence and the conclusion of the trial, illegal detention, and undue delay in the trial of the case.

It is essential that the Courts should provide investigating authorities with reasonable time to carry out their investigations. It is equally necessary that the Courts strike a correct balance between this requirement and the equally compelling consideration that a citizen's liberty cannot be curtailed unless the facts and circumstances completely justify it. Upon the literal interpretation of the Section 437 of Code of Criminal Procedure, it is observed that the legislature has used the words "reasonable grounds for believing" instead of "evidence". Thus, the Court has merely to satisfy as to whether the case against the accused is genuine and whether there is prima facie evidence to support the charge.

It is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute and reasonable restrictions can be placed on them. The Court, at the time of adjudicating bail applications, after taking such factors into account, is at liberty to impose reasonable conditions to be abided by the applicant.

IMPOSITION OF CONDITIONS

Section 437 of the Code of Criminal Procedure empowers the Court to impose conditions at the time of granting bail. The Court may, while granting bail to a person, ask him to surrender his passport as stated in Hazarilal vs. Rameshwar Prasad4. The accused cannot be subjected to any condition which is not pragmatic and is unfair. It is the duty of the Court to ensure that the condition imposed on the accused is in consonance with the intendment and provisions of the sections and not onerous. Under Section 437(3) the Court has got the discretion to impose certain conditions, on the person accused or suspected of the commission of an offence punishable with imprisonment, such as - (a) that such person shall attend in accordance with the conditions of the bond executed,(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. The Court may also impose, in the interests of justice, such other conditions as it considers necessary. In order to make the provision stringent and to see that the person on bail does not interfere with the investigations or intimidate witnesses, sub-section (3) has been amended to specify certain conditions5, which carry mandatory effect. The conditions as such imposed at the time for granting bail have to be reasonable. The Hon'ble Supreme Court in the matter of Sumit Mehta vs. State of NCT of Delhi6 held, "The words 'any condition' used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail."In the said case, the Apex Court set aside the decision of High Court of Delhi wherein the Bail Applicant was directed to deposit an amount of Rs. 1,00,00,000/- (One Crore) in fixed deposit in the name of the complainant in the nationalized bank and to keep the FDR with the Investigating Officer. The Hon'ble Supreme Court in the matter of Sheikh Ayub vs. State of M.P7, while adjudicating upon the reasonability of the imposed bail conditions held, "By the impugned order, the Appellant was granted bail and directed to deposit Rs.2,50,000/- which is alleged to be the amount appropriated by the Appellant. There was also condition for furnishing surety bond for Rs. 50,000/-. In the circumstances of the case, direction to deposit Rs. 2,50,000/- was not warranted, as part of the conditions for granting bail." The onus is upon the Court to consider the entire facts and circumstances of the case before imposing the conditions for granting the bail. The Apex Court in the matter of Ramathal and others vs. Inspector of Police and Another8, held that the High Court of Punjab and Haryana, had not taken into account the entire facts of the case in proper perspective while adjudicating, since the conditions imposed by the High Court asking the applicant to deposit a sum of Rs. 32,00,000/- (Thirty Two Lacs) was unreasonable and onerous, and beyond the means and power of the appellants, hence and the matter was remitted back to the High Court.

CONCLUSION

The primary objective of the provisions providing for the bail should not be to detain and arrest an accused person but to ensure his appearance at the time of trial and to make sure if the accused is held guilty, he is available to suffer the consequence of the offence as such committed, in terms of punishment in accordance with the law. It would be unjust and unfair to deprive the alleged accused of his liberty during the pendency of the criminal proceeding against him. The release on bail upon appropriate considerations and imposition of reasonable conditions is significant not only to the accused, and his family members who might be dependent upon him but also the society large, hence the Court is duty bound to contemplate the facts and circumstances prevailing in the matter and strike a balance between considerations and imposition of the reasonable conditions and then pass the appropriate order.

Footnotes

1 AIR 2004 SC 4258

2 AIR 2002 SC1475

3 AIR 2001 SC 1444

4 AIR1972SC484

5 Cr. PC (Amendment)Act, 2005 (25 of 2005)

6 (2013) 15 SCC570

7 (2004) 13 SCC 457

8 (2009) 12 SCC 721

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