Bail is the rule and jail is the exception. The saying resonates in courtroom corridors and is a common saying, reflecting the essence of bail jurisprudence. However, bail is subject to conditions. The Court granting Bail may impose conditions, and if the conditions are violated, the bail may be cancelled. However, it is a common occurrence that sometimes the conditions imposed while granting bail can be unduly harsh, and sometimes arbitrary, and even impossible to comply with. In such cases, the Hon’ble Allahabad High Court has the jurisdiction to modify the bail conditions, or if the Court finds sound grounds, to set aside the conditions. Furthermore, the Hon’ble Allahabad High Court has the inherent jurisdiction to modify or set aside bail conditions, in the interest of justice.
What are the bail conditions that may be imposed while granting bail?
Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023, read with Section 480 of the Bhartiya Nagarik Suraksha Sanhita, 2023 enables the Court to impose conditions of bail in the interest of justice. However, the ambit of discretion must be bound by reason and “interest of justice”.
In the case of Kunal Kumar Tiwari vs. State of Bihar (2018) 16 SCC 74, the Hon’ble Supreme Court has held as follows:
“9. There is no dispute that clause (c) of Section 437(3) allows courts to impose such conditions in the interest of justice. We are aware that palpably such wordings are capable of accepting broader meaning. But such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision. The phrase “interest of justice” as used under the 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.”
Furthermore, taking into account and relying on the previous decisions, the Hon’ble Apex Court has crystallised the limits on the Court. A broader meaning cannot be assigned to the words “interest of justice” in Section 437(3) of Cr. PC/ Section 480 B.N.S.S.
Hence, Bail conditions cannot be fanciful, arbitrary or freakish. The object of imposing conditions of bail is to ensure that the accused:
- does not interfere or obstruct the investigation in any manner,
- remains available for the investigation,
- does not tamper with or destroy evidence,
- does not commit any offence,
- remains regularly present before the Trial Court, and
- does not create obstacles in the expeditious conclusion of the trial.
Hence, the conditions incorporated in the order granting bail must be within the four corners of Section 437(3) Cr.P.C./ Section 480(3) B.N.S.S. The bail conditions must be consistent with the object of imposing conditions. While imposing bail conditions, the Constitutional rights of an accused, who is ordered to be released on bail, can be curtailed only to the minimum extent required.
What if a condition of bail violates right to privacy of the accused?
Right to privacy is a fundamental right under Article 21 of the Constitution of India, upheld in the landmark case of Justice K.S. Puttaswamy vs. Union of India and others, and a bail condition cannot restrict the right to privacy. In the case of Frank Vitus vs. Narcotics Control Bureau, the Hon’ble Supreme Court held that a condition of providing location via Google Maps is an infringement of Right to Privacy under Article 21 of the Constitution of India, and on this ground, proceeded to quash the said bail condition.
What if a bail condition is impossible to comply with?
It is seldom the case that the Courts will impose absurd or impossible bail conditions. However, if such a condition, which prima facie appears impossible to comply with, then such a condition can be set aside or substituted as it impinges upon the precious liberty of the accused, guaranteed under Article 21 of the Constitution of India.
However, more often than not, one can witness that the bail conditions imposed upon the accused are not bound by time limits, and the opposite party may move a bail cancellation application if the condition is not fulfilled by the accused. In such a case, one may move before the Court praying for setting aside the bail condition or modifying it to the extent as required.
Can a Bail Condition be substituted?
The Hon’ble High Court can exercise its inherent jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, to substitute a bail condition with other bail conditions if the same is arbitrary or freakish.
In the case of Jagdish Arora and another vs. Union of India, the Division Bench of the Hon’ble High Court of Madhya Pradesh, Jabalpur, exercised its inherent jurisdiction to substitute a bail condition with other bail conditions. In this case, the bail condition challenged was that the accused who is enlarged on bail, shall not leave India without the permission of the Court. Since the applicants had to visit a foreign country for their business pursuit, they challenged the condition imposed on them. The Hon’ble Madhya Pradesh High Court substituted the condition in order to facilitate the travel of the applicants with security.
What is the procedure to get the Bail Conditions cancelled or modified?
The applicant can either prefer a Modification Application in the Order granting Bail praying for modification of the order granting bail to the extent of either substituting, or setting aside, or modifying the bail condition. Such modification may be sought on various grounds as available in law. One may also prefer a fresh application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita 2023 invoking the inherent jurisdiction of the Hon’ble Allahabad High Court, praying for setting aside a bail condition, which is fanciful, freakish or arbitrary.