Arbitrary And Stringent Conditions On Default Bail Infringe Fundamental Rights Under Article 21 Of Constitution: Kerala HC

It is in the fitness of things that while pitching in most vocally in favour of protecting the statutory rights of the accused, the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Vishnu Sajanan vs State of Kerala in Crl.M.C. No. 10253 of 2023 and cited in Neutral Citation No. : 2023:KER:76193 that was pronounced as recently as on November 29, 2023 has minced just no words to state in no uncertain terms that arbitrary or stringent conditions imposed on an accused when he was released on default bail under Section 167 of the Code of Criminal Procedure (CrPC) was violative of his fundamental rights under Article 21 of the Constitution of India. To put it differently, the Kerala High Court very rightly ruled that default bail is a statutory right of an accused and Court cannot deny statutory bail by imposing stringent conditions which cannot be complied by accused. It must be mentioned here that the Kerala High Court was considering a petition that had been filed by a man (petitioner) who was arrayed as the first accused in the drug possession case. We ought to take note that this pragmatic, pertinent and pivotal judgment was an outcome of the stringent conditions that the Sessions Court of Ernakulam had attached to the bail granted to the accused who was facing charges under Sections 22 and 29 of the NDPS Act due to the incomplete investigation even after 60 days of judicial custody. The accused challenged these stringent conditions to the bail before the Kerala High Court.

It must be certainly noted here that the Single Judge Bench comprising of Hon’ble Mr Justice P.V. Kunhikrishnan stated that “An accused in detention shall be released on bail after the period of detention mentioned in Section 167(2), if he is prepared to and furnish bail. This statutory right cannot be circumvented by imposing onerous conditions.” No denying it! We thus see that the Kerala High Court has most sagaciously set aside the stringent bail conditions that were arbitrary thus providing relief to the accused that he had sought. It is really good to note that the Kerala High Court’s decision once again reaffirms the sanctity of the statutory right to default bail and underscores the prime importance of ensuring that arbitrary conditions are best avoided as they directly impede the access to justice which is a statutory right of the accused and so also fundamental right under Article 21 of the Constitution.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice P.V. Kunhikrishnan of Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The point to be decided in this case is whether stringent conditions can be imposed while granting default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.).”

As we see, the Bench envisages in para 2 that, “Petitioner is arrayed as 1st accused in Crime No.1295/2023 registered by Cheranalloor Police Station. The above case is registered alleging offences punishable under Sections 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, Act 1985).”

To put things in perspective, the Bench envisages in para 3 that, “The prosecution case is that, on 12.09.2023 at about 04.55 P.M. the accused persons were found inside a hotel room at Edapally, in possession of 1.75 grams of MDMA kept hidden beneath the bed which was placed next to the northern wall of the room. The petitioner was arrested from the alleged place of occurrence and was produced before the jurisdictional Magistrate and was sent to judicial custody.”

 As it turned out, the Bench then discloses in para 4 that, “The petitioner filed two bail applications before the Sessions Court and those bail applications were dismissed by the learned Sessions Judge. Thereafter, the petitioner filed Crl.M.C.No.3258/2023 before the Sessions Court, Ernakulam, for bail, because the investigation was not completed within the statutory period of sixty days. The learned Sessions Judge allowed that petition as per Annexure-A1 order, with the following conditions:

“1. The petitioner shall be released on bail on executing bond for Rs.1,00,000/- with two solvent sureties each for the like sum, to the satisfaction of the jurisdictional Court.

2. The petitioner shall appear before the investigating officer on every Saturdays between 10.00 am and 11.00 am, till the final report is filed.

3. One of the sureties shall be a close relative of the petitioner. The relative is not solvent, there shall be 3 sureties, of which one shall be the relative and others solvent sureties.

4. The sureties shall produce the original title deeds of their property along with a copy thereof. The original shall be returned after verification.

5. The petitioner shall not intimidate or influence the witnesses or interfere with the investigation.

6. The petitioner shall not involve in any other crime during the bail period.

7. The petitioner shall not leave the State without the leave of the jurisdictional Court.

8. In case of violation of any of the conditions, the bail granted to the petitioner will result in cancellation of bail.””

Be it noted, the Bench notes in para 5 that, “The petitioner is aggrieved by Condition Nos.(3) and (4) in the impugned order. It is stated that the petitioner hails from a poor family and his family does not own any land of their own. It is also stated that the relatives of the petitioner are not willing to stand as surety for him. It is submitted that the petitioner remains in custody even after the bail order and he is unable to furnish bail bonds due to the unwarranted conditions, especially Condition Nos.(3) and (4) in Annexure-A1 order. Therefore this Criminal Miscellaneous Case is filed to set aside Condition Nos.(3) and (4) in Annexure-A1 order granting bail.”

Needless to say, the Bench then states in para 6 that, “Heard the learned counsel for the petitioner and the learned Public Prosecutor.”

Quite significantly, while citing a most recent, remarkable and relevant case law, the Bench then propounds in para 7 that, “On a perusal of Annexure-A1, it is clear that the petitioner was granted default bail. There is no dispute on that from the prosecution also. Default bail is granted based on Section 167(2) Cr.P.C. Section 167 (2) says that, after the period of detention mentioned in it, the accused shall be released on bail if he is prepared to and does furnish bail. It is the statutory right of an accused to get released based on default bail. When default bail is granted, there cannot be any stringent conditions. The Apex Court in Shaik Nazneen v. State of Telangana and Others [2023 (9) SCC 633] considered this point. Relevant portion is extracted hereunder:

“15. The other reason assigned is that the trial court while granting bail did not lay down any conditions. This is again a wrong presentation of the case. Conditions were not imposed simply as it was a default bail, and in bail of this nature conditions are not liable to be imposed.””

Finally and far most significantly, the Bench then concludes by directing and mandating in para 8 that, “The default bail is a statutory right of an accused. The Court cannot deny statutory bail to an accused by imposing stringent conditions which cannot be complied by the accused. While imposing conditions in default bail, the Court can only impose such conditions to ensure that the accused will appear before the court concerned for trial and will also co-operate with the investigation. An accused in detention shall be released on bail after the period of detention mentioned in Section 167(2), if he is prepared to and furnish bail. This statutory right cannot be circumvented by imposing onerous conditions. Such arbitrary condition imposed while granting statutory bail amount to infringement of the fundamental right of the detenue under section 21 of the constitution of India. When the petitioner submits before this Court that Condition Nos.(3) and (4) are onerous conditions, in the light of the dictum laid down by the Apex Court, I am of the considered opinion that those conditions are to be lifted. The sureties can be directed to produce tax receipts instead of original title deeds of their property.

Therefore, this Criminal Miscellaneous Case is allowed in the following manner:

1. Condition Nos.(3) and (4) in the order dated 15.11.2023 in Crl.M.C. No.3258/2023 of the VIII Additional Sessions Judge, Ernakulam Division, is set aside.

2. The sureties shall produce tax receipts instead of original title deeds of their property.”

In a nutshell, we thus see that the Kerala High Court by this most remarkable, robust and rational judgment has made it indubitably clear to all the Courts that imposing arbitrary and stringent conditions on default bail is violative of the fundamental rights and most wrongly punishes the accused just for being poor as we see in this leading case which cannot be ever justified. It is the bounden duty of all the District Courts not just in Kerala but all over India to always abide fully, firmly and finally with what the Kerala High Court has held in this leading case when they come across similar such cases while presiding as Judges and must ensure always that they definitely desist from imposing arbitrary, whimsical and stringent conditions which a poor accused cannot afford to comply with! Of course, the earlier this is done by all the Courts the better it shall be in the interest of ensuring that the legal rights of the accused are not violated with impunity! No denying it!

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