Examining the Legality of Extraneous and Irrelevant Conditions for Bail

THE Code of Criminal Procedure, 1973 broadly classifies offences into two types: ‘bailable’ and ‘non-bailable’, under Section 2(a) read with Schedule 1. It is pertinent to note that while the grant of bail is a matter of right in case of bailable offences, as provided under Section 436 of the Code; bail in case of non-bailable offences is a matter of discretionary power of the court and the police officer in-charge of the police station. In case of bailable offences, the right to be granted bail cannot be subjected to any conditions, but, in case of non-bailable offences, the same can be subjected to “certain specific conditions”, as provided under Section 437(3) and Section 439(1).

Conditions on bail: The legislative mandate under Sections 437(3) and 439(1)

Section 437(3), which provides to the Judicial Magistrate the power to impose conditions on the grant of bail, states that:

“When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

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

(c) otherwise in the interests of justice.”

The Supreme Court has held that the purpose of imposing bail conditions should be to prevent the person from obstructing the investigation. As a result, any condition that has nothing to do with the fairness or legitimacy of the inquiry or trial cannot be considered legal.

Section 439(1) further provides the same power to the Sessions Court and High Court, stating that the High Court or Court of Session may direct that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section.

Also read: SC sets aside bail condition making sexual assault accused request rakhi from victim; says judges should not impose condition perpetuating stereotypes

An exposition into the judicial trend of bail conditions

A perusal of section 437(3) shows that the power of the magistrate to impose conditions on bail can be exercised when the courts consider it necessary for either of the three purposes stated in the provision. While the first two purposes, as given in clauses (a) and (b) are clear enough, the third purpose, that is, a condition which the court considers necessary in the interest of justice, has been expanded by the courts to include a plethora of conditions.

In this regard, it is important to take note of a few recent decisions by high courts across India. High Courts have vigorously used section 439(1) of the Code to impose conditions on bail that might serve the general good of the public. A plethora of such conditional orders of bail surfaced during the pandemic, most notably from the Madhya Pradesh High Court.

A 2020 order by the Madhya Pradesh High Court, wherein the accused was booked for committing an offence against a minor girl under the Protection of Children from Sexual Offences Act; the court granted bail subject to planting of tree saplings. In its reasoning, the court observed that “human existence is at stake because of the environmental degradation”, and so the due compliance of its direction must be ensured in the interest of environmental protection. A similar order of the Orissa High Court, in a case in which the accused charged for criminal intimidation and attempt to murder, directed the accused to plant a hundred saplings in his village within three months as a condition of bail.

The Madhya Pradesh high court directed the accused in another 2020 bail order to register themselves as “COVID-19 warriors”, donate to the PM CARES Fund, and work in “COVID-19 Disaster Management”. The reasoning of the court for such a peculiar order must be noted. The court held that “human resource in shape of young-aged appellants could be utilized for the betterment of the society and to ward off the crises”.

In yet another bail order from 2020, the Madhya Pradesh high court 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 in the pandemic. The Patna High Court also imposed a condition of compulsory voluntary service in COVID-19 relief work for a period of three months, in a 2020 order granting bail to the accused.

As reported by Livelaw, the Gwalior Bench of the Madhya Pradesh High Court, in 2020, established a new trend during the pandemic, of requiring under-trails to give money for the production and distribution of food to the needy and underprivileged sections of society. More recently, in January this year, the Madhya Pradesh high court, while granting bail to a college student, imposed the condition of serving at community health center twice a week.

In yet another case from 2020, the Madhya Pradesh high court, while granting bail, ordered the accused to install LED lights at the District Hospital that cost at least Rs. 25,000 and were manufactured in India or elsewhere, except in China. In another case from 2020, the same high court, while granting bail, directed the accused to not use any social media platform for two months “for digital detoxification” as part of his bail conditions.

Also read: Can the court restrict an accused from using social media as a condition for bail? SC to decide 

Do ‘social good’ and ‘community service’ bail conditions satisfy legal standards?

As mentioned above, the right to impose conditions on the grant of bail can be exercised by the judicial magistrate, and the Sessions and High Courts, when they consider the same as “necessary” and “in the interest of justice”, alongside other two specific situations.

It is important in this regard to note that the terms ‘necessary’ and ‘interest of justice’ have a specific import, as distinct from ‘desirable’ and ‘interest of society’, respectively. The word ‘necessary’ itself restricts the scope of bail conditions to situations where justice cannot otherwise be secured without such conditions.

This emphasis on the ‘interest of justice’ was expounded upon in a 2017 order passed by the Supreme Court in the case of Kunal Kumar Tiwari vs. State of Bihar, wherein the Supreme Court held that the phrase ‘interest of justice’ as used in section 437 of the Code means “good administration of justice” or “advancing the trial process”. In its 2013 judgment in Sumit Mehta vs. State of N.C.T. of Delhi, the Supreme Court held that the purpose of imposing bail conditions should be to prevent the person from obstructing the investigation. As a result, any condition that has nothing to do with the fairness or legitimacy of the inquiry or trial cannot be considered legal.

A loose construction of the terms ‘necessary’ and ‘interest of justice’ would defeat the strictness of the law and impinge on the guarantee of Article 21 of the Constitution of India.

The said observation clearly reflects that the usage of the word ‘justice’ in sections 437(3)(c) and 439(1) aptly restricts the scope of the nature of the condition to one directly connected with the pending trial. Such an interpretation would certainly exclude from the ambit of the judicial power the imposition of bail-conditions such as planting trees in a case of sexual offence against minors, or directing mandatory voluntary work in case of charge of abetment of suicide. The conditions in the nature of planting trees, community service, and distribution of free food, though, while certainly contributing towards social good, are entirely disconnected with the purpose of administration of ‘justice’ or effectiveness of the trial. However, it is surprising to note that the scope of bail conditions as laid down by the Supreme Court, has not been adhered to by the high courts, as evident from the cases cited in the previous section.

Another relevant consideration that must be taken into account is that the rule of ejusdem generis would apply to the case of interpretation of the phrase ‘any other condition’ under section 437(3)(c). The ejusdem generis rule, as defined by Black’s Law Dictionary, means “the principle where general words follow an enumeration of persons or things by particular and specific words – these general words are construed and held as applying only to persons or things of the same general kind as those specifically enumerated.” For instance, in the case of Siddeshwari Cotton Mills (P) Ltd vs. Union of India (1989), the Supreme Court interpreted the general expression “any other process”, followed by specific words, which were “bleaching, mercerizing, dyeing, printing, water-proofing, rubberizing, shrink-proofing, organic processing” under Section 2(f) of the Central Excise and Salt Act, 1944 as ejusdem generis with the latter.

In the case of section 437(3) of the Code, the nature of the conditions in clauses (a) and (b) are strictly confined to the purpose of ensuring smooth trial and investigation. While the condition under section 437(3)(a) is to secure the accused’s appearance, the condition under section 437(3)(b) is directed at ensuring against tampering of evidence. The condition under Section 437(3)(c), which is phrased in general terms, must therefore also be read in the same light, as belonging to the general kind, that is, to ensure the accused’s honest cooperation during investigation and judicial proceedings.

It is important to note at this juncture, that “bail” as an instrument of securing freedom has strong interconnections with the right to life and personal liberty under Article 21 of the Constitution of India. Coupled with the rule of strict interpretation in case of criminal statutes, a loose construction of the terms ‘necessary’ and ‘interest of justice’ would defeat the strictness of the law and impinge on the guarantee of Article 21 of the Constitution of India.

Also read: Is bail a right or a privilege?

As observed by the Supreme Court earlier this year, an arbitrary or stringent bail condition would amount to denial of bail, and would thus be violative of the right to personal liberty of the accused. It is pertinent for the courts to realize that the tool of bail under criminal administration cannot be used as a means to achieve the ends of social progressiveness and development. Such an approach goes against the legislative mandate and imposes harshness upon the accused, prior to determination of their guilt, anchoring against the basic tenet of “innocent until proven guilty”.

(The views expressed are personal.)

Paras Ahuja is a fifth year B.A., LL.B. (Constitutional Law Hons.) student at the National Law University, Jodhpur.