The Indian criminal justice system primarily is founded upon the presumption of innocence, therefore, basic rule of our criminal system is ‘bail and not jail’. Some statutes, however, are exception to this basic rule of bail. This article delves into the essence of bail conditions, their significance, and the imperative need for alignment with the bail’s fundamental purpose.
The object of arrest and detention is not punitive but to secure the presence of accused during trial. The object of bail Is not only to secure the presence of accused during trial and to make sure to suffer punishment, if, held guilty. The object of bail is also to protect and secure the liberty of the person accused including to secure the right to defend in proper and efficient manner.
The Courts have discretion to grant bail. The Courts are exercising its discretion to grant bail in judicious manner after considering the facts and circumstances of the case. The Courts while granting bail has power to impose conditions. The intent behind conditions is to secure presence of accused during trial and to ensure uninterrupted investigation. The conditions, therefore, should be fair & pleasant and not onerous. Onerous bail conditions would result into frustrating the very object of bail and amounts to denial of bail. The persons because of their incapability to comply with onerous bail conditions are languishing in jail for years. Bail order for such persons is nothing but a waste piece of paper. The Courts, therefore, should be conscious to impose conditions.
The Courts are protectors and not destroyers, therefore, have incumbent duty to protect the right of every person including the right of an accused. The Hon’ble Supreme Court in Dataram Singh versus State of Uttar Pradesh & Another, (2018) 3 SCC 22 has pen down its pain that basic principle of bail has lost its sight which resulted into long incarceration of persons in jail. The onerous bail conditions are contributing long to incarcerate the persons in jail for longer period and sometimes to the extent of maximum prescribed sentence for an offence. Long detention has not only frustrated the object of bail but has also violates the right of liberty including right of fair trial. Lond pre-trial detention is punitive in nature. The Courts, therefore, should have conscious about the interest of both the parties while imposing bail conditions.
The bail conditions should be in the interest of justice and should have nexus with the good administration of justice or advancing the trial. The Hon’ble Madras High Court in Amaldoss and others versus State, MANU/TN/0200/2015 has considered the object of bail conditions and has observed that idea to impose conditions on bail is to ensure the presence of accused as and when required and the non-interference of the accused with the investigation. The Hon’ble High Court has further observed that imposing condition of depositing money is unreasonable and amounts to denial of bail.
The onerous bail conditions have no nexus with the good administration of justice or advancing the trail process. The onerous conditions rather are an arbitrary exercise in utter disregard to the very purpose of the criminal justice system. The primary object of surety is to secure the presence of the accused during trial by fixing responsibility. The onerous conditions are neither formable nor executable but arbitrary and excessive and are in the nature of denial of bail.
The essential requirement behind imposition of any bail condition is that it should result in minimum interference with the personal liberty of an accused and rights of police to investigate the case. A balance, therefore, should be maintained between the personal liberty of an accused and investigational right of police. The Hon’ble Apex Court in Hussainara Khatton & Others versus Home Secretary, AIR 1979 SC 1360 has held that decision with regard to the amount of bond should be an individualized decision depending on the individual financial circumstances of the accused and the probability of his absconding. The Hon’ble Supreme Court has further held that the amount of bond should be determined having regard to relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of charge, otherwise it would be difficult for an accused to secure his release even by executing a personal bond.
The Hon’ble Apex Court in Moti Ram & Others versus State of Madhya Pradesh, (1978) 4 SCC 47 has held that when sureties should be demanded and what sum should be insisted on are dependent on variable and the Court should be liberal in releasing the accused on their own recognizances by imposing reasonable conditions. The Hon’ble Apex Court has also deprecated the practice of demanding heavy sums by way of bail.
The Hon’ble Apex Court in Munish Bhasin & Others versus State (Government of NCT of Delhi) & Another, (2009) 4 SCC 45 has held that bail conditions should not be harsh, onerous or excessive to frustrate the object of granting bail. The Hon’ble Jharkand High Court in case of Jitendra Oraon versus State of Jharkand, 2020 SCC Online Jhar 434 has held that bail conditions should be in consonance to object and purpose of bail. The Hon’ble Apex Court in Yashik Jindal versus Union of India, 2023 SCC Online SC 417 has depreciated the onerous bail conditions.
The Hon’ble Apex Court in Re Policy Strategy for Grant of Bail, 2023 SCC Online SC 483 has taken note of incapability to comply with bail conditions has directed the concerned court to take suo moto steps to modify/relax the bail conditions where person is failed to furnish bonds within 1 month from date of bail order.
Conclusion
The Courts are judiciously exercising its discretion to grant bail. The Courts, while granting bail, are imposing conditions which should be pleasant & fair and should be in consonance to object of bail. The bail conditions which are onerous are causing prejudice to the alleged accused person by depriving his liberty and by preventing him from facing the fair trial. The onerous bail conditions, thus, amount to denial of bail which is contrary to basic rule of ‘bail’. The Courts have incumbent duty to achieve object of bail, if, opted to exercise its discretion of granting bail in favour of alleged accused. The bail conditions, therefore, should be pleasant, just & fair and should be in consonance to the object of bail.
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