In Sudeep Chatterjee vs State of Bihar 2024 INSC 567, Supreme Court's bench of Justices C.T. Ravikumar and Prashant Kumar Mishra observed: "We are constrained to refer to the said maxim on being pained to see that despite a catena of decisions deprecating the practice of putting onerous conditions for pre-arrest bail such orders are being passed without giving due regard to the binding precedents."
The case arose from an order of the Patna High Court whereby the High Court granted provisional pre-arrest bail in complaint case against the appellant alleging commission of offences punishable under Section 498A of the Indian Penal Code (IPC), 1860 and Section 4 of the Dowry Prohibition Act, 1961.
The appellant's application for pre-arrest bail before the Court of Sessions Judge, Katihar was dismissed. An application for an anticipatory bail was moved before the High Court against it.
The Court drew on the decisions of the Supreme Court's Constitution Bench in Shri Gurbakash Singh Sibbia & Ors. v. State of Punjab (1980) and in Parvez Noordin Lokhandwalla v. State of Maharashtra (2020). In the latter case the Court held: “…The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case.”
The Court observed that the constant and consistent view of the Court on matters granting a prayer for bail under Section 438 of the Code of Criminal Procedure, 1973 is that "after forming an opinion, taking note of all relevant aspects, that bail is grantable, conditions shall not be put to make it impossible and impracticable for the grantee to comply with."
Relying on the Court's decision in Parvez Noordin’s case, the Court observed that "the ultimate purpose of putting conditions while granting pre-arrest bail is to secure the presence of the accused and thus, eventually to ensure a fair trial and also for the smooth flow of the investigating process."
The Court's order reads: "we would reiterate the view that courts have to be very cautious in imposing conditions while granting bail upon finding pre-arrest bail to be grantable."
The Court concluded that the conditions mentioned in the Patna High Court's order in paragraph 6 "for the release of the appellant on the provisional bail cannot be sustained and as such the said conditions to give undertaking that the appellant would fulfil all physical and financial requirements by way of an affidavit are set aside." The order of August 2, 2024 reads: The order granting the bail is made absolute and the appellant in the event of his arrest be released on bail subject to the same terms stipulated by the High Court under the impugned order regarding suretyship as also the liability to comply with conditions as laid down under Section 438(2), Cr. P.C....The impugned order stands set aside only to the aforesaid extent."
The Court cited the maxim ‘Lex non cogit ad impossibilia’ which means ‘the law does not compel a man to do what he cannot possibly perform’.
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