By Dr Swati Jindal Garg
The single-judge bench of Justice Swarana Kanta Sharma of the Delhi High Court while hearing the Disha Ravi case said that while an individual’s freedom to travel abroad is a cherished right, “it is not absolute”, and criminal courts are duty-bound to “prevent misuse of liberty of bail by individuals”. Activist Ravi was arrested in connection with a February 2021 FIR and later granted bail by a trial court on certain conditions. The FIR had been registered under various IPC sections, including criminal conspiracy and sedition, containing allegations that there was a concerted campaign by “banned terror organisations to disrupt the Republic Day… ceremony through several unlawful acts in the name of protests” and that a “Google document (toolkit)” had come to notice of probe agencies on Twitter which contained a “detailed plan of a larger conspiracy to wage economic, social, cultural and regional war against the country”. It has been alleged by the prosecution that Ravi was the editor of this “toolkit” and taking note of this fact, the Court also said that there is “no infringement of mobility rights of the accused or any geographical boundaries restriction” placed on Ravi, but a reasonable condition of seeking permission of the Court before travelling abroad, which has not been denied to her in the past.
The High Court, however, directed that the state will have to file a response “expeditiously”, giving sufficient time to the trial court to pass an order in case Ravi moves an application seeking permission to go abroad. The Court also clarified that the trial court while imposing certain conditions on the bail granted to Ravi had taken note of the “entire circumstances of the case, and in its wisdom, has imposed (the) condition that in case the petitioner would wish to visit another country, prior permission of the Court will be taken” and that “merely because the condition imposed by the Court as per law is causing inconvenience to the petitioner, it can neither become a ground for deletion of the condition nor it can be said that the same amounts to violation of her fundamental right to travel abroad.”
The Court also took note of the fact that the investigating agency had still not filed a charge sheet and was still collecting evidence from “foreign intermediaries which are crucial pieces of evidence in the present case” due to which it may require Ravi’s presence or information from her, and her going abroad by “merely intimating” and without permission or submitting the itinerary and the duration or purpose of the visit will have “adverse impact” on the investigation and trial of the case.
This is not the first time that the courts have imposed conditions while granting bail to an accused. Our Constitution requires that the accused be presumed innocent before trial, thus granting all citizens the right to a bail hearing, where the accused has the opportunity to be represented by counsel, present evidence and cross-examine witnesses. But, it has been seen that many times justice comes at a price. When bail amount is set unreasonably high, people are behind bars only because they are poor—not because they’re a danger or a flight risk. They don’t have the money to get out of jail and they certainly don’t have money to flee anywhere. Equally worrisome are the conditions imposed at the time of granting bail. While some may be termed as reasonable, there are always those that are impossible to meet, thus creating a scenario wherein the accused remains incarcerated despite having been granted bail only because he has been unable to fulfil the conditions imposed upon him.
In another recent case, Ashish Mishra, son of Union minister Ajay Mishra and a prime accused in the Lakhimpur Kheri violence case, had been granted bail by the trial court on the condition that he would not stay either in Uttar Pradesh or in Delhi during the period. Mishra, however, approached the Supreme Court in a modification application, stating that his mother is admitted to the Ram Manohar Lohia Hospital in Delhi and also his daughter needs treatment for certain deformities in her legs due to which he may be allowed to stay in Delhi. The apex court allowed his application on humanitarian grounds with the rider that Mishra should not participate in any public function or address the media with regard to the ongoing case in Delhi. The top court also clarified that the prohibition imposed upon Mishra with regard to entering Uttar Pradesh would continue to operate.
Every citizen of India has a fundamental right to freedom guaranteed under Article 21 of the Constitution, which specifically states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Any individual who violates the law of the land is bound to face consequences as per the law, and in such a case, his freedom may be restricted depending upon the gravity of offence committed. Such individuals, however, also have the right to move the court for bail which may then depend upon the merits of each case to allow or reject the bail application.
Section 437 of the IPC empowers the Court to impose any condition at the time of granting bail, subject to the rider that such a condition should be reasonable, pragmatic and not unfair. In the words of the apex court: “The words ‘any condition’ used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail.”
In the case of Sumit Mehta vs NCT of Delhi, the Supreme Court had set aside the decision of the Delhi High Court, wherein the bail applicant was directed to deposit an amount of Rs 1,00,00,000 (one crore) in fixed deposit in the name of the complainant in the nationalized bank and to keep the FDR with the investigating officer. The Supreme Court had, thereafter, in Sheikh Ayub vs. State of M.P., while adjudicating upon the reasonability of the imposed bail conditions held: “By the impugned order, the Appellant was granted bail and directed to deposit Rs.2,50,000/- which is alleged to be the amount appropriated by the Appellant. There was also a condition for furnishing a surety bond for Rs. 50,000/-. In the circumstances of the case, direction to deposit Rs. 2,50,000/- was not warranted, as part of the conditions for granting bail.”
Further, the apex court had in another matter, Ramathal and others vs Inspector of Police and Another, held that the High Court of Punjab and Haryana, had not taken into account the entire facts of the case in proper perspective while adjudicating, since the condition imposed by the High Court asking the applicant to deposit a sum of Rs 32 lakh was unreasonable and onerous, and beyond the means and power of the appellants, and hence the matter was remitted back to the High Court.
Then, there have also been cases wherein the courts have imposed conditions like granting of bail subject to planting of tree saplings wherein, 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. The Madhya Pradesh High Court, for example, had directed the accused in a 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 was that “human resource in shape of young-aged appellants could be utilized for the betterment of the society and to ward off the crises”.
The Gwalior Bench of the Madhya Pradesh High Court had also, in 2020, established a new trend during the pandemic—of requiring undertrials to give money for the production and distribution of food to the needy and the underprivileged sections of society, and last year, the Madhya Pradesh High Court, while granting bail to a college student, had imposed the condition of serving at community health centre twice a week.
Considering that the thumb rule is “bail and not jail”, the primary objective of the provisions providing for bail and the related conditions imposed should not be to detain and arrest an accused person, but to ensure his appearance at the time of trial, thereby making sure that if the accused is held guilty, he will be available to suffer the consequence of the offence committed in terms of the punishment imposed upon him in accordance with the law. It would be highly unjust and unfair to deprive the alleged accused of his liberty which is his fundamental right during the pendency of the criminal proceeding against him, especially in the light of the fact that the accused is primarily innocent until proven guilty. The release on bail upon appropriate considerations and imposition of reasonable conditions is significant not only to the accused and his family members who might be dependent upon him, but also the society at large and hence the court is duty bound to contemplate the facts and circumstances prevailing in the matter and strike a balance between considerations and imposition of the reasonable conditions before it passes any bail order.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi