The Supreme Court has deprecated the practice of trial courts and High Courts imposing harsh and unreasonable conditions on the accused while granting them anticipatory bail.

“While exercising power under Section 438 of the Cr.PC, the court is duty-bound to strike a balance between the individual’s right to personal freedom and the right of investigation of the police. Thus, any condition, which has no reference to the fairness or propriety of investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the court while imposing conditions must be exercised with the utmost restraint,” said a Bench of Chief Justice P. Sathasivam and Justice Ranjana Desai

Writing the judgment, the CJI said: “The words “any condition” used in the provision should not be regarded as conferring absolute power on a court to impose any condition it chooses to impose.” The condition should be reasonable in the facts permissible in the circumstance and effective in the pragmatic sense and “should not defeat the order of grant of bail.”

The Bench said: “Law presumes an accused to be innocent till his guilt is proved…and he is entitled to all fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution.” The courts were expected to keep in mind the nature and gravity of an accusation and the antecedents of the applicant — his previous involvement in such an offence and the possibility of his fleeing from justice. They should also ascertain “whether the accusation has been made with the object of injuring or humiliating him by having him arrested.”

A reading of sub-section (2) of Section 438 of the Code “makes it clear that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant.”

Delhi HC order quashed

The Bench set aside an order of the Delhi High Court which, while granting Sumit Mehta (appellant) anticipatory bail in a cheating case, directed him to keep for six months Rs. 1 crore in a fixed deposit in a nationalised bank, in favour of a complainant. The facts and circumstances of the case “do not warrant such an extreme condition to be imposed,” the Bench said.

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