The Supreme Court will examine whether trial courts and High Courts can impose odd and irrelevant conditions while granting bail in a criminal case.

A Bench of Justices B. Sudershan Reddy and Deepak Verma last week issued notice to the Tamil Nadu government on an appeal from P. Thamizharasan and another person against an order of the Madras High Court imposing such conditions.

The former Union Law Minister and senior counsel Ram Jethmalani, appearing for the petitioners, argued that the abnormal conditions — to serve in an orphanage/welfare home and to hoist the national flag in front of their houses for a week — on the face of it showed that the court had presumptions that the alleged offences had been committed by the accused. The Bench directed that the matter be listed for October 26.

The prosecution case was that on April 25, the petitioners along with the other accused assembled in front of the Coimbatore Collectorate and were arrested when they attempted to burn the Indian and Sri Lankan flags in protest against the attack by the Sri Lankan army on Tamils.

On the trial court refusing bail, they approached the High Court, which on June 9 granted bail with the conditions attached. Their plea for modification of the conditions was rejected on July 1.

The special leave petition (SLP) in the Supreme Court against this order said imposing the condition of hoisting flags and rejecting the modification application, presuming the guilt of the accused, amounted to an utter encroachment on the functions of the trial court. The High Court based its irrelevant conditions on the fundamental duties enshrined in the Constitution, the SLP said.

The High Court “seeking to enforce a fundamental duty by setting it as a condition for bail in a criminal case such as the present one would tend to spoil the existing tender fabric of the constitutional scheme of fundamental duties and fundamental rights.” Imposing odd conditions would not secure the accused from fleeing but would only produce an impression among the public and the prosecution that the petitioners were already convicted, the SLP said.

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