Bail with excessive and onerous conditions is no bail: Supreme Court

In Girish Gandhi vs. State of Uttar Pradesh and Others, the Supreme Court's bench of Justices B.R. Gavai and K.V. Viswanathan observed that the grant of bail with excessive conditions that the accused would find difficult to fulfill would tantamount to denial of bail. The judgement was delivered on August 22, 2024. The Court took note of the meaning of ‘surety’ according to Oxford Dictionary. It defines it as “a person who takes responsibility for another’s obligation”. Advanced Law Lexicon defines ‘surety’ to mean “the bail that undertakes for another man in a criminal case.” The Court referred to the relevant provisions-Sections 441 and 446-under Code of Criminal Procedure (Cr.PC).

Section 441 of the Cr.PC which deals with bonds and sureties, reads: “Bond of accused and sureties.– (1)Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness.”

Section 446 of the Cr.PC which deals with procedure when bond has been forfeited, reads: “Procedure when bond has been forfeited. – (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.”

The Court relied on Court's decision in Satender Kumar Antil vs. Central Bureau of Investigation & Anr. (2022) 10 SCC 51. The Court has held that “imposing a condition which is impossible of compliance would be defeating the very object of release.” 

It also relied on Court's order in Court in Re Policy Strategy for Grant of Bail in SMWP (Criminal) No. 4/2021 reported in 2023 SCC OnLine SC 483. By the order dated 31.01.2023, the Court endorsing certain directions sought by the Amicus Curiae passed an order for compliance with those directions. The two relevant directions are extracted hereunder:- “6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/relaxation.
7) One of the reasons which delays the release of the accused/convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety.” 

The Court recalled the decision of Justice V. R. Krishna Iyer in Moti Ram and Ors. vs. State of Madhya Pradesh (1978) 4 SCC 47. Justice Iyer observed “33. To add insult to injury, the magistrate has demanded sureties from his own district! (we assume the allegation in the petition). What is a Malayalee, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies. What law prescribes sureties from outside or non-regional language applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms, sometimes, geographic, sometimes linguistic, sometimes legalistic. Article 14 protects all Indians qua Indians, within the territory of India. Article 350 sanctions representation to any authority, including a court, for redress of grievances in any language used in the Union of India. Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland Swaraj is made of united stuff.”

The Court observed: "From time immemorial, the principle has been that the excessive bail is no bail. To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand, what is given with the right. As to what is excessive will depend on the facts and circumstances of each case. In the present case, the petitioner is experiencing a genuine difficulty in finding multiple sureties. Sureties are essential to ensure the presence of the accused, released on bail. At the same time, where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the 14 requirement of furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India. An order which would protect the person’s fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate. As to what such an order should be, will again depend on the facts and circumstances of each case."

Drawing on these decisions, the Court's judgement reads: "In view of the above, we propose to relieve the petitioner from the direction to produce a local surety....This condition will supersede the condition imposed in the respective bail orders." The judgement was authored by Viswanathan.