mehnatBail Conditions: Overview
Top of PageAny judge who grants you (or anyone else) bail has –when passing his order granting bail– the power to impose certain restrictions upon you (or upon the person in question) with respect to your behaviour during the period in which you are free on bail, while your 498a/406/34 trial (or criminal trial under any other section(s) of the IPC or under any other law) goes on in any (other) court. Let me rephrase that. The judge who grants you bail has the power to impose absolutely any lawful conditions which he / she deems fit.
This power has been given to judges by various provisions of the Criminal Procedure Code; notably by section 437 and 438. For the limited purpose of this current discussion we can say that while the latter section deals with accused persons who have applied for and obtained anticipatory bail, the former pertains to those people who manage to obtain bail after they have spent some time in custody, which in other words is to say that it pertains to people who have not managed to obtain anticipatory bail. This section (437 of the Criminal Procedure Code of India) may be adjudged as having been shoddily drafted, for reasons explained below.
Critique of Possible Bail Conditions u/s 437 of CrPC
Top of PageSection 437 lays down certain conditions which are compulsory in the event of bail being granted by any judge in the case of offences against the state (the offences and punishments pertaining to the offences listed under Chapter 6 of IPC), offences against the human body (the same items mutatis mutandis vis-à-vis Chapter 16 of IPC), and offences against property (the same items mutatis mutandis vis-à-vis Chapter 17 of IPC). Such conditions are also compulsory if a person is accused of attempting to, or conspiring to, or abetment of these offences. The conditions are also compulsory in the case of offences which are punishable by a sentence which may extend to 7 years or more in jail. The judge has no power to refuse to impose these conditions.
These conditions are three in number.
The first condition is that the person who is bailed out needs to follow all the conditions which are mentioned in the bail bond executed by him under the relevant chapter. This expression "bail bond executed by him under this chapter" is confusing, and can be interpreted as being meaningless insofar as providing for the imposition of any specific set of conditions which are either not to be found or are not imposable in bail bonds executed under any other chapter (of the IPC) is concerned. (The confusion arises because of the reference to the various chapters of the IPC in the paragraph 437(3) of the CrPC. A better drafted law would have stated clearly "bail bond executed by him under this chapter of the CrPC" (which is to say, Chapter 33 of the CrPC) instead of "bail bond executed by him under this chapter".) Let me restate this in a simpler fashion. Conditions in a bail bond do not depend upon the chapter of the IPC (or of the CrPC for that matter) under which any specific offence pertaining to the bail application is to be found, or vice-versa. They are mostly the reasoned requirements (or whims and fancies) of courts and policemen. Due to this, this condition purports to be a fixed condition while in essence it gives the judge the power to set any legally permissible condition whatsoever. It is therefore a carte blanche to the judge (and to a limited extent to the police), and not really a fixed (in the sense of being a limited) condition.
The second condition which is compulsory under section 437 is that "such person (the person who is being granted bail) shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected". The phrase "of the commission of which he is suspected" is superfluous and confusing in this clause. Basically all they needed to say in this second condition was that the person should not commit a fresh offence, and this too would have needed to have been said only in case they were being fastidious. To need to tell someone that they will lose their freedom if they commit a crime –similar or dissimilar to the one which they are accused of– is all good, and makes sense, if the person who you are talking to is a child. Not otherwise.
A funny but not so funny thing about this clause, which many falsely accused men will note, is that this is a dangerous clause because the person who has been bailed out after being falsely accused can land in prison again upon a second false accusation. This is where section 437 and 438 come to the limited rescue of the accused person, insofar as he can use them to try to obtain bail in case he has not been convicted of certain types of offence in the past as explained in the article on this page. You can read an article about the procedure for AB on this page.
The third condition, and the only one which makes complete sense is "that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence." This is entirely reasonable and is a welcome provision of law. Indeed, the falsely accused husband can reinforce his credentials in the eyes of the law to a certain extent by following this requirement to a T.
The judge/court has also been specifically given the power to impose additional conditions by section 437(3) of the CrPC by the following words at the end of the three clauses described above, "and may also impose, in the interests of justice, such other conditions as it considers necessary." This is entirely unnecessary since clause (i) of 437(3) already grants this power to the court, as has been explained above in the explanation about that clause.
Remember that IPC 406 (Punishment for criminal breach of trust) is a provision for punishment for a crime against property, and is a provision of chapter 17 of the IPC. So the judge has no choice but to set the three conditions which are mentioned in section 437 CrPC in case you apply (or are forced by circumstances to apply) for bail after spending some time in custody.
Critique of Possible Bail Conditions u/s 438 of CrPC
Top of PageThese, so far described, are the conditions which are set in the case of bail which is not obtained in anticipation. Section 438 of CrPC deals with anticipatory bail, and it lays down the conditions which shall or may be set by any court which awards anticipatory bail to an accused person.
A reading of clause 438 (1b) (iv) gives the impression to the careless reader that all the conditions imposed by section 437 are to be imposed on anybody obtaining anticipatory bail in a 498a case. This clause reads as follows– "(iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section."
Such an impression is incorrect, as is much in the common man's understanding of the law. The critical word in this clause is 'may'. The court has the power to impose any conditions which it deems fit, and this power comes to it via a reading of this clause with the relevant clauses of Section 437, but no condition is rendered compulsory by this clause or such reading.
There are three other (preceding) clauses in this section, none of which is compulsory. This is the reason why anticipatory bail is such a sought after relief, and also explains why it is potentially and usually a superior relief to the accused person than bail after arrest. These clauses read as follows–
"(i) a condition that the person shall make himself available for interrogation by a police officer and when required;
(ii) a condition that the person shall not, directly or indirectly,- make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer,
(iii) a condition that the person shall not leave India without the previous permission of the court;"
The second clause here has already been explained above, and is entirely reasonable in this writer's opinion. The first clause also appears to be entirely reasonable, and it may reasonably be wondered why this clause is not compulsory. The answer perhaps lies in the desire of the legislature to minimise discretionary powers of the police.
The third clause is of interest to the considerable number of 498a accused who are NRIs or PIOs. To preclude the possibility of this condition being imposed by the court hearing your AB application, make sure that your lawyer includes –in the prayer section of your application– a request to the court to not impose this condition on you should it decide to grant AB to you.
You may also wish to read an article about the bail circus in India
previous article (about what happens after an AB order including bail bond, sureties etc.) ) / हिंदी में (मुचलकों, ज़मानतियों आदि सम्बंधित खानापूरी के बारे में लेख)।
next article (about cancellation of bail) / हिंदी में (ज़मानत निरस्तीकरण के बारे में लेख)।