COVID-19 – X: Jharkhand High Court’s Recent Bail Conditions: Improper exercise of Judicial Discretion?

By Harpreet Singh Gupta

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Recently, while hearing a revision petition, the Jharkhand High Court enlarged the accused on bail who was sentenced for one year for obstructing running of trains, etc. under Section 174(a) of the Railways Act. The conditions that the court put were rather interesting. The accused were directed to: (a) deposit Rs. 35,000 each in the PM Cares Fund and show the proof of the same before the lower court; (b) download the Aarogya Setu App and abide by conditions in relation to COVID-19 pandemic as released by the Central and State Government; (c) deposit a self-attested copy of Aadhar card along with a mobile number. The author believes that although amidst the pandemic, the bail conditions mentioned in (a) and (b) above may seem appropriate at first blush, a deeper analysis would show that these conditions violate basic tenets of bail under Indian criminal law. To this end, we need to understand the meaning and purpose of bail, what are the conditions that can be imposed by courts while granting bail as per the Code of Criminal Procedure, 1973 (“Code”) and the extent of discretion that the courts have in imposing bail conditions.

Bail: Meaning and Purpose

Chapter XXXIII of the Code deals with bail and is titled “Provisions as to Bail and Bonds”. The said chapter does not contain a definition of the term bail. The definition of bail is not provided even in other parts of the Code or in any other Indian law. As per P Ramanatha Aiyer’s Advanced Law Lexicon, bail is a security that is taken for setting a person at liberty. The main purpose of bail is not to arrest or detain a person but to ensure that his presence is secured at the trial so that if he is guilty of the alleged offence he can suffer the consequences as per law. In addition, there can be detention or certain conditions (as we will see below) that can be imposed for inter-alia protection against tampering of evidence and fair investigation.

Bail conditions and judicial discretion

In case of bailable offences, the accused has a right to bail as per Section 436 of the Code subject to compliance with the conditions of the bail. As against this in case of non-bailable offences, the Court of Magistrate as per Section 437 of the Code and Sessions Court/High Court as per Section 439 of the Code has the discretion to grant or deny bail. Further, there are certain conditions, which may be imposed while granting bail.

Section 437(3) provides that the following are the conditions that shall be imposed by the Magistrate’s Court while releasing accused on bail:

that such person shall attend in accordance with the conditions of the bond executed under this Chapter;

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,

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.

In addition, it provides that the court may impose any other condition that it considers necessary in the interest of justice.  Section 439 of the Code similarly permits the Sessions Court or High Court to impose any of the conditions provided in Section 437(3). Therefore, the Code vide these provisions empower the courts to impose conditions while enlarging accused/convict on bail.

With regards to the power of courts to impose any other condition that it considers necessary, in the case of Sumit Mehta v. State of NCT Delhi, (2013) 15 SCC 570 the Supreme Court (in context of “any other conditions” under Section 437(3) of the Code) observed that:

“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.”

Therefore, it is clear that the conditions imposed under “any other condition” need to be reasonable and must have nexus with the object that is sought to be achieved by their imposition.

Jharkhand High Court recent order: Improper exercise of discretion?

The first condition imposed by the Jharkhand High Court was depositing money into PM Cares fund. Unlike such a deposit, the courts usually ask for bail bonds, as the sum of money deposited ensures the presence of the accused and is returned once the purpose is fulfilled. If there is non-compliance with other bail conditions, then it can be forfeited. However, depositing money into an account meant for relief for a pandemic while being noble, does not serve any such purpose and is totally irrelevant to the case. While it is open to the accused persons to deposit money into any relief fund that they may choose, making it as a condition for grant of bail is not permissible as per the provisions of the Code. Further, the author believes that the fact that the offer to deposit money into the said fund came from the accused does not in any way impact the legality of imposition of such condition by the court.

The second condition imposed was downloading the Aarogya Setu application right after being released from the custody. This condition is again not relevant to the case in terms of ensuring the fairness of investigation or securing the presence of accused. Further, there are several privacy issues with the application in relation inter alia to the collection of information, data storage and transparency (more on this can be found here and here). To justify this bail condition, it may be argued that the government has encouraged the usage of the application and therefore why should the court making it a condition be of any problem. A simple response to that is that the government has merely encouraged the usage of the said application and therefore anyone, who downloads and uses it, does so voluntarily. However, if the same is made as a condition for bail, the element of consent or voluntariness goes away.

Therefore, the author believes that while the judge may have had the best of intentions amidst this unprecedented pandemic but that does not grant him the power to impose these conditions, which are alien to the bail provisions under the Code. Thus, it is submitted that the exercise of discretion to impose such conditions was improper and one can only hope that this is not used as a precedent by other courts.

[The author is a lawyer based in Delhi and an alumnus of National Law School of India University, Bangalore.]

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