How bizarre bail conditions punish without a trial

On June 2, the Allahabad High Court, while granting bail to an accused, imposed some weird conditions. He asked the accused to deposit Rs 1 lakh in favor of a registered gaushala or barn in Bareilly and serve the cows there for a month.

Similar orders have been seen in the past, where courts have asked the accused to undertake tasks, such as planting trees, performing community service or donating money to charity.

In many of these bail orders, there is an idea of ​​reforming the accused at the step level itself. However, these orders end up punishing the accused before his conviction, thus going against the principle of the presumption of innocence of the accused until proven otherwise. Several such orders have also been overturned by the Supreme Court and various High Courts.

On June 2, the Allahabad High Court ordered the defendant to deposit Rs 1 lakh in favor of a registered gaushala or barn in Bareilly and serve the cows there for a month. Credit: HT File Photo

Public Service

In September 2021, a local court in Bihar granted bail to a scrubber charged with assault on the condition that he wash and iron the clothes of all the women in his village free of charge for six months. After that, he should get a certificate from the village sarpanch or any respectable village official and file it in the relevant court, the judge said. The same judge also ordered a man accused of outraging the decency of women to clean sewers as a bail condition. In another case, the same judge ordered a person accused of transporting illicit alcohol to pay for education of five poor children for three months.

In July 2020, in more than 15 bail ordersa Madhya Pradesh High Court bench ordered the defendants to “provide physical and financial assistance” to public primary schools near their residences, Live right reported. Apart from this, the High Court, in various instanceshad asked the defendants to volunteer to help Covid-19.

In another case in 2019, a court in Ranchi had asked a woman arrested for placing allegedly communal posts to donate five copies of the Quran to different libraries as part of her bail condition. However, after protests and a request from the investigator, this condition has been removed.

To give money

In many cases, the courts ask the accused to donate money, usually for charitable purposes.

In May 2020, in at least 17 bail orders, a single Madhya Pradesh High Court judge ordered defendants to deposit money with district collectors “for use in preparing food and its distribution to oppressed people, including migrant workers, by any government agency/NGO,” Live right reported.

The Jharkhand High Court in April 2020 ordered the defendants to donate Rs 35,000 each to the Prime Minister Citizens Assistance and Relief in Emergency Situations or PM-CARES Fund as bail condition. Along with this he asked them to install covid tracing app Aarogya Setu. This is another common point bail condition seen in several cases.

In another case, the High Court of Madhya Pradesh asked a accused of buying a “black colored LED TV… worth at least Rs 25,000, made in India or abroad, except China”.

During Covid-19, many bail orders asked defendants to volunteer for Covid-19 relief or donate money to a Covid-19 fund. Credit: Reuters

To plant trees

Another common example of unusual bail orders, the courts asked the defendant to plant trees.

In April, the High Court of Madhya Pradesh, in an attempted murder case, ruled bail condition that the accused shall plant 10 saplings of a fruit tree or a neem or a peepal tree and secure them at his own expense.

In another command starting in March, the same bench ordered a murder defendant to plant five similar saplings, which should be “six to eight feet tall, so that they grow sooner” and fence them in for protection. The court also ordered the defendant to submit photos of the saplings and submit a status report every three months for the next three years. Apart from this, the defendant was asked to download an app so that the High Court could monitor saplings through geolocation.

While prescribing these conditions, the court clarified that bail was granted on the merits and the order to plant saplings was given afterwards. Still, he said that if those conditions weren’t met, the bond would be forfeited. In 2020, the Orissa High Court had also asked a defendant of attempted murder to plant 100 saplings, after noting that there was no established prima facie case against him.

Reform the accused

The High Court of Madhya Pradesh, while imposing the condition of planting saplings, said“This directive is made by this Court as a test case for addressing the anatomy of violence and evil through the creative process and a step toward alignment with nature.”

“The natural instinct for compassion, service, love and mercy must be rekindled for human existence as these are innate attributes of human existence.” These were given because the defendant expressed a desire to do social service, he added. The court said that the same thing in June 2020, when similar conditions were imposed when issuing a bond.

In many such orders, bail conditions are tied to the crime with which the accused is charged, raising the possibility that the court may want to reform the accused at the bail stage. For example, in the Allahabad High Court bail asking the accused to serve in a gaushala, the accused was booked under Cow Slaughtering Act 1955.

In another case, the High Court of Madhya Pradesh had granted bail to a person accused of harassing a woman on the condition that he ask the woman to tie a rakhi band and promise to protect her. It was put aside by the Supreme Court, where she also established guidelines on how the courts should deal with sexual harassment cases.

Being off social media

In a few cases, courts have also asked those arrested for making objectionable statements against politicians to refrain from using social media as bail conditions.

In 2020, the Madras High Court asked an individual who had posted on Facebook against Narendra Modi not to use social media for a year. The Allahabad High Court asked a defendant not to use social networks for two years. The High Court of Madhya Pradesh impose a two-month social media ban on a defendant for “digital detox”. The Supreme Court has a pending petition whether such prohibitions are legal.

The Supreme Court has sometimes attempted to clarify that courts should not impose arbitrary or punitive bail conditions.Credit: Sajjad Hussain/AFP

Guilty before trial

With certain exceptions, the law presumes that a person is innocent until proven guilty. Many of these imposed conditions, such as doing community service or donating money, would be tantamount to punishing a person for a crime for which they have not been convicted.

Subsection 437(3) of the Criminal Procedure Code 1973 states that for certain offences, such as those resulting in more than seven years imprisonment or if they come under certain sections of the Indian Penal Code dealing with offenses against the state, human body and property, impose conditions that the accused will not commit the offenses for which she is charged and will not obstruct the investigation or tamper with evidence. In addition, it specifies that the court may impose “in the interest of justice, such other conditions as it deems necessary”.

In addition, Section 439 gives a High Court or Magistrate’s Court the power to impose “any condition it deems necessary” for Section 437(3). These terms, such as “any condition”, have been used by the courts to impose the bail conditions mentioned above.

Using these sections, the courts attempt to impose whatever bail conditions they deem appropriate. However, higher courts have often overruled them. In May, while granting bail to Azam Khan in a land grabbing case, the Allahabad High Court put a condition that he must cooperate fully with the measurement, masonry and wiring of a property.

The Supreme Court said the conditions imposed by the High Court for bail are “disproportionate and bear no reasonable connection to the conditions which must be imposed to ensure the presence of the accused and to ensure that the fairness of the trial does not not be hindered”. In several cases, the Supreme Court has ruled that bail should only be granted to advance trial process and that the purpose of the bond, which is to secure appearance of the accused, cannot be “punitive or preventive”.

In several cases, the fines imposed were also cancelled. The local courts of Madhya Pradesh and Kerala had ordered the defendants to deposit money into the PM-Cares fund, intended for corona relief, as a condition of bail. However, this requirement has been waived by state high courts. Even the High Court of Jharkhand had canceled an order of the judicial commissioners imposing a fine of Rs 60,000 to be deposited in the excise department. The High Court held that this fine was a punishment, which can only be imposed if guilt is proven.

Elizabeth J. Harless