Introduction

According to Article 21 of the Indian Constitution, “No person shall be deprived of his life or personal liberty except according to procedure established by law,” every Indian citizen has a fundamental right to freedom. Any person who breaks the law is subject to legal repercussions, and depending on the severity of the offence, his freedom may be restricted. The Court must take into account a variety of factors, including the nature or seriousness of the offence, the character of the evidence, the circumstances that 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, before granting bail to any accused who has been frivolously charged with the allegations of a non-bailable offence. The Court is obligated to rule on bail applications as soon as possible with a reasoned decision based on the applicant’s good character in light of the current facts and circumstances.

Considerations at the Time of Granting Bail

Based on Section 438(1) of CrPC, the Supreme Court has enumerated a detailed and exhaustive list of considerations while deciding anticipatory bail. They are as follows:-

• Gravity of crime and role of accused must be understood before the arrest. 
• Previous record of accused, any imprisonment on conviction in respect of non bailable offence, should be checked. 
• Possibility that applicant will flee from justice. 
• Chances of repetition of similar or other offences. 
• Intention behind accusation is whether to injure or humiliate the applicant by arresting him or her. 
• Consider the exact role of the accused. 
• Reasonable apprehension of tampering with evidence, witnesses and threatening the complainant.

Impositions of Conditions

Section 437 of the Code of Criminal Procedure empowers the Court to impose conditions at the time of granting bail. 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.

In the case of Munish Bhasin and Others Vs. State (Government of NCT of Delhi) and Another (2009) 4 SCC 45, the Appellant had approached the Supreme Court in Appeal against an order of the High Court that had imposed onerous conditions for grant of Anticipatory Bail in a Domestic Violence case. This Hon’ble Court in its reasoning held that harsh and excessive conditions cannot be imposed while granting bail, the relevant observations of this Court are reproduced hereunder:

“10. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. There is no manner of doubt that the court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all.

12. While imposing conditions on an accused who approaches the court under Section 438 of the Code, the court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under Section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under Section 438 of the Code.”

In the case of Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, This court held that the object of bail is neither punitive nor preventative. It was observed as under:

“21. In bail applications, generally, it has been laid down from the earliest times that the object

bail is to secure the appearance of the accused person at his trial by reasonable bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 

23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
24. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situations and would jeopardise the personal liberty of an individual.
25. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.”

In the case of Kunal Kumar Tiwari v. State of Bihar, 92018) 16 SCC74. It was observed as under:

“Undisputedly, clause (c) of Section 437(3) allows courts to impose conditions in the interest of justice. Palpably, such wordings are capable of accepting broader meaning but such conditions cannot be arbitrary, fanciful or extend beyond the end of provision. Phrase “interest of justice” is used under clause (c) of section 437(3) means “good administration of justice” or “advancing the trial process” and inclusion of broader meaning should be shunned because of purposive interpretation.

Deletion or Modification of Bail Conditions

Under section 439 the court of sessions or High Court has power to modify or set aside certain bail conditions on reasonable grounds. If the accused is able to satisfy the court that he has followed all the bail conditions and cooperated with the police or investigating authorities then the court may modify or relax the bail conditions.

Restrictions to Travel

The Court may often pose a condition on the accused to not leave the territory of the respective state or the country considering that the accused may have to cooperate with the police authorities for investigation and interrogation purposes. 

However, in certain cases it becomes necessary for the accused to travel outside of the country or outside of the state for personal or professional commitments.

In such circumstances the accused can approach the court of sessions or the High Court under section 439 of the Criminal Procedure Code,1973 and seek relaxation in bail conditions while furnishing valid and sound reasons.

The Court, while considering the right to travel as a fundamental right, has considered such prayers for modifications of bail conditions in the catena of judgments.

The Gujarat High Court in the case of IMTIYAZ ABDULLA CHAKKIWALA & 2 Versus STATE OF GUJARAT & 1; (CR.MA/3236/2012) the accused had to travel often outside of india for the business purposes, the court held to relax and modify the conditions and held that whenever applicant leaves the country and travels abroad, he will inform the Directorate of Revenue Intelligence in advance and the condition imposed shall remain in abeyance and, thereafter, it will be revived automatically.

In another case of JAYDEVSINH PRATAPSINH ZALA Versus STATE OF GUJARAT; (R/CR.MA/1305/2015) the Accused approached the Hon’ble Gujarat High Court seeking modification of condition stating he cannot leave State of Gujarat without prior permission of Sessions Judge concerned. The applicant submitted that view of business assignment and necessity to travel outside the State of Gujarat the above condition operates against the interest of the applicant and in the past he had applied either for modification or relaxation of such condition. The court was pleased to relax the condition and allowed the accused to travel outside of Gujarat while intimating the local police station.

Conclusion

The provision for bail should not be used to detain and arrest an accused person; rather, it should be used to guarantee his appearance at the trial and ensure that, if the accused is found guilty, he will be able to face the legal consequences of the crime as it was done. Depriving the alleged accused of his liberty while the criminal case against him is pending would be unfair and unjust. The Court is obligated to consider the facts and circumstances prevailing in the matter, strike a balance between considerations and imposition of reasonable conditions, and then pass the appropriate order. The release on bail upon appropriate considerations and imposition of reasonable conditions is significant not only to the accused and his family members who may be dependent on him but also to society as a whole.

Written by Advocate Husain Trivedi