Apex court says excessive bail conditions, amounts to no bail

Introduction

In positive development concerning bail jurisprudence, the Supreme Court on August 22 said that courts should not impose excessive bail conditions which would be impractical to comply with. The verdict notes that “From time immemorial, the principle has been that the excessive bail is no bail. To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand, what is given with the right.” The court clarified that as to what constitutes “excessive” needs to be decided on a case-to-case basis, taking into consideration the facts and circumstances of the case.

The bench of Justices BR Gavai and KV Vishwanathan delivered the verdict on the plea filed by one Girish Gandhi requesting the court to consider joint sureties against multiple bail orders issued to him by the courts across several states. In the present case, bail orders were secured against 13 FIRs filed against Gandhi under IPC Sections 406 (criminal breach of trust), 420 (cheating) and 506 (criminal intimidation), across the states of Uttar Pradesh, Haryana, Punjab, Rajasthan, and Uttarakhand.

The court noted that “The substratum of the allegation is that the Company which was to give space to open store on rent in some cases; 5% commission on monthly sale in some; 10% margin on goods sales in some others; 12% interest as dividend on investment in a few and minimum 24% profit in certain agreements, failed in its promise.”

While Gandhi secured bail orders in several FIRs across the states, the conditions imposed therein required him to furnish separate surety in each case, which he was unable to find. He managed to arrange sureties against the FIR registered in Kerala and in one of the two FIRs filed in Haryana, but did not find in other cases. At the same time, the states of Uttar Pradesh (UP), Rajasthan, and Uttarakhand opposed the plea, arguing that separate sureties must be furnished against the FIRs registered in their respective states. Explaining the objection from the state of UP, the judgement reads, “According to the State, for each crime number, separate surety is required and a particular surety cannot be made liable to pay the amount in excess of the amount of bond that the surety has furnished. In view of that, according to the State, bond of one surety cannot be mixed up with the bond executed or to be executed in other cases against different crime numbers.”

The judgement observes that “…where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the requirement of furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India. An order which would protect the person’s fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate.”

The bench relied on Satender Kumar Antil vs. Central Bureau of Investigation & Anr. [(2022) 10 SCC 51] and quoted that “imposing a condition which is impossible of compliance would be defeating the very object of release”. It further cited Hani Nishad @ Mohammad Imran @ Vikky vs. The State of Uttar Pradesh [SLP (Criminal) Nos. 8914-8915 of 2018] in which the court had granted relief to the petitioner by ruling that “the personal bond so executed by the Petitioner and the bond so executed by the two sureties shall hold good for all the 31 cases”.

Furthermore, the apex court said that courts cannot compel the person to furnish only local surety as it is very difficult in most cases and noted that “The petitioner herein hails from Haryana and to secure a local surety will be an arduous task for him”. Relying on the authoritative Justice Krishna Iyer in Moti Ram and Ors. vs. State of Madhya Pradesh [(1978) 4 SCC 47], the bench waived off the requirement for local sureties, implying that such requirements are parochial and divisive.

The court ruled that “in each of the States of Uttar Pradesh, Rajasthan, Punjab and Uttarakhand, in each state, the petitioner will furnish his personal bond for Rs. 50,000/- and furnish two sureties who shall execute the bond for Rs. 30,000/- each which shall hold good for all FIRs in the concerned State, for cases mentioned in the chart set out hereinabove. The same set of sureties is permitted to stand as surety in all the States.”

In the separate order passed by the Supreme Court on August 6 [Satender Kumar Antil v. Central Bureau of Investigation and anr – MA 2034/2022], the Bench of Justices MM Sundresh and Aravind Kumar issued directions to the states/UTs, Union of India, several High Courts, and Central Bureau of Investigation, asking them all to comply with the SOP issued by the apex court in February 13, 2024 to help accelerate release of undertrial prisoners from jail who have secured bail but are unable to furnish bond/sureties.

The SOP was initially formulated by the Central Government but the Supreme Court gave it a legal shape and issued the following directives in its February 13 order:

Undertrial Prisoners –

1. If the undertrial prisoner is not released from the jail within a period of 7 days of order of grant of bail, then the jail authority would inform Secretary, District Legal Services Authority (DLSA).
2. Secretary, DLSA would inquire and examine whether the undertrial prisoner is not in a position to furnish financial surety for securing bail in terms of the bail conditions. For this, DLSA may take the assistance of Civil Society representatives, social workers/ NGOs, District Probation officers or revenue officer. This exercise would be completed in a time bound manner within a period of 10 days.
3. Secretary, DLSA will place all such cases before the District Level Empowered Committee every 2-3 weeks.
4. After examination of such cases, if the Empowered Committee recommends that the identified poor prisoner be extended the benefit of financial benefit under ‘Support to poor prisoners Scheme”, then the requisite amount upto Rs. 40,000/- per case for one prisoner, can be drawn and made available to the Hon’ble Court by way of Fixed Deposit or any other method, which the District Committee feels appropriate.
5. This benefit will not be available to persons who are accused of offences under Prevention of Corruption Act, Prevention of Money Laundering Act, NDPS or Unlawful Activities Prevention Act or any other Act or provisions, as may be specified later.
6. If the prisoner is acquitted/convicted, then appropriate orders may be passed by the trial Court so that the money comes back to the Government’s account as this is only for the purposes of securing bail unless the accused is entitled to the benefit of bail U/s. 389 (3) Cr.P.C. in which event the amount can be utilised for bail by Trial Court to enable the accused to approach the Appellate Court and also if the Appellate Court grants bail U/s. 389 (1) of Cr.P.C.
7. If the bail amount is higher than Rs. 40,000/-, Secretary, DLSA may exercise discretion to pay such amount and make a recommendation to the Empowered Committee. Secretary, DLSA may also engage with legal aid advocate with a plea to have the surety amount reduced. For any amount over and above Rs. 40,000/-, the proposal may be approved by the State level Oversight Committee.

Convicted Prisoners –

1. If a convicted person is unable to get released from the jail on account of non- payment of fine amount, the Superintendent of the Jail would immediately inform Secretary, DLSA (Time bound manner: 7 days).
2. Secretary, DLSA would enquire into the financial condition of the prisoner with the help of District Social Worker, NGOs, District Probation Officer, Revenue Officer who would be mandated to cooperate with the Secretary, DLSA. (Time bound manner: 7 days)
3. The Empowered Committee will sanction the release of the fine amount up to Rs. 25,000/- to be deposited in the Court for securing the release of the prisoner. For any amount over and above Rs. 25,000/-, the proposal may be approved by the State level Oversight Committee.

In the present order, the bench issued further directions for compliance of the aforementioned SOP. These directions are as follows:

1. Every Magistrate and/or Sessions Judge shall inform its jurisdictional Principal District Judge about any form of non-compliance of Para.100.2 or Para.100.3 of Satender Kumar Antil vs. CBI & Anr. (2022) 10 SCC 51, within 1 week of recording such non-compliance;
2. Every Principal District Judge shall maintain a record of details of such non-compliances received from the concerned Magistrates;
3. Every Principal District Judge upon receipt of details of non-compliance by the concerned Magistrate shall, on a monthly basis, forward the same to the Registrar General of the concerned High Court and to the Head of Police in the concerned District;
4. The Head of Police of the concerned District shall, upon receipt of details of non-compliance of Para.100.2, take action against the erring officer as soon as possible and inform the concerned Principal District Judge;
5. The Registrar General of each High Court shall, upon receipt of details of such non-compliance of Para.100.2 and/or Para.100.3, place the same before the Committee for “Ensuring the Implementation of the Decisions of the Apex Court” for further action and forward it to the higher Police Authority. In those High Courts where such a committee is not currently in place, the same shall be constituted by the respective High Court.

The order also asked state governments to ensure full compliance of para. 100.8 and para. 100.9 of Satender Kumar Antil vs. CBI & Anr. [(2022) 10 SCC 51] and provide details as to what steps have been undertaken to facilitate the release of the said UTPs as directed in Para. 100.8. It also instructed states to train its prosecutors on periodic basis to keep them abreast about correct position of law and asked them to circulate the judgements passed by the apex court in Siddharth vs. State of UP [(2022) 1 SCC 676] and Satender Kumar Antil.

The court said that it aims to take up this matter (ensuring compliance with the SOPs) in a phased manner, keeping in view the large number of parties, and scheduled the next hearing on October 15, 2024.

The copy of the August 22 judgement concerning excessive bail conditions can be found here:

The copy of the SC order dated August 6 concerning the compliance directives can be found here:

The copy of the SC order dated February 13 concerning the SOP can be found here:

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