Why Jharkhand HC's Bail On Conditions Of Donation To PM CARES Fund & Downloading Aarogya Setu Is Problematic?

The Operative part of the judgment reads as under:

"14.Pending hearing of this case, the sentence of the petitioners is hereby suspended and the petitioners are directed to be enlarged on bail in connection with Railways Act Case No. 380 of 2012., T.R. No. 15 of 2017, upon furnishing personal bond up to the satisfaction of learned Trial Court considering the lock down under pandemic Covid-19, on the following conditions:

(i) The petitioners shall show proof of payment of Rs. 35,000/-(Thirty Five thousand) each in the 'Prime Minister's Citizens Assistance and Relief in Emergency Situations (PM CARES) Fund' before the learned court below prior to their release.

(ii) The petitioners shall download the 'Aarogya Settu App' immediately after being released from custody and shall abide by the directions of the Central Government as well as State Government issued in connection with containment of Covid-19 pandemic.

(iii) The petitioners will submit self attested copy of their Aadhar Card and also give their mobile number before the learned court below which they will not change during the pendency of this case without prior permission of this court.

(iv) I.A. No. 2199 of 2020 is disposed of."

Now, this order, to me is problematic as it's against the basic tenets of criminal jurisprudence. To me it's a case of judicial overreach and perhaps the court was overwhelmed by the current pandemic.

The court has rightly asked for personal bond subject to the satisfaction of the trial judge. However, it imposes two additional conditions- one to make contribution to PM CARES Fund and second to download Aarogya Settu App. Now, today as we are in the middle of the pandemic it looks okay but over the years this is a problematic precedent. To understand it, we need to go to the root as to - Why are bails granted? What's the purpose of bail and bail bonds? And finally, what happens to the amount deposited as surety?

What is a bail?

CHAPTER XXXIII of Code of Criminal Procedure, 1973 deals with the PROVISIONS AS TO BAIL AND BONDS. However, the term "Bail" is neither defined under the CrPC or in any other legislation^[1]. Etymologically, the word is derived from an old French verb "bailer" which means to "give" or "to deliver", although another view is that its derivation is from the Latin term "baiulare", meaning "to bear a burden".

Stroud's Judicial Dictionary^[2] explains concept of Bail as:

"… when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King's use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed—that is to say, set at liberty until the day appointed for his appearance"

Purpose of Bail

The purpose of Bail is to secure presence of an accused/convict. Bail is a mechanism to procure the release of an individual from legal custody, by undertaking that he shall appear at the appointed date and time and would submit himself to the jurisdiction and judgment of the court. Now, to secure his presence a surety is taken and certain conditions are put. Supreme Court in Moti Ram^[3] held that a bail can be secured on one's own bond, with or without securities.

Grant or refusal of Bail is largely discretionary. But remember the discretion is judicious discretion. Historically, the only criterion for refusal of bail was the subjective satisfaction of the Magistrate that he reasonably believed that accused is guilty of offence. This was problematic, and our forefathers debated this in Legislative Assembly debate^[4]. Dr H S Gour and Mian Sir, Dr Muhammad Shaifi debated on 'what's the purpose of bail'. The debate is as under:

"Dr. Gour - What does the existing provision, however, provide? It says: no Magistrate shall release a person on bail if there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused. The Magistrate is to prejudge the case and he is to say to the accused: I have reasonable grounds for believing that you have been guilty of this offence; therefore, whatever may be the reasons which would move me to release you on bail, you cannot be released on bail.

That is the sole criterion of bail. Now, if we turn to the English law, we shall find a very different criterion there for releasing persons on bail and, in inviting this House to adopt either the one or the other, I shall ask the House to remember what is the underlying principle for arresting a person and releasing him on bail. It requires no large legal training such as my Honourable friend, the last speaker, possesses, nor need one be an unpaid Magistrate to understand that. When a man is arrested, the sole and single purpose of his arrest is that he should not run away, and, when he is released on bail, the sole criterion for releasing him on bail and fixing the quantity of bail is that he should not run away. (Mr. N M Samarath: "Nor commit suicide"?). Very few people do that; and even people under arrest sometimes commit suicide. That is, the sole criterion. Well, I submit, if the Magistrate is assured that the man is not likely to run away

- (The Honourable Sir Malcolm Hailey: "How?") best security against his absconding, is there any reason why he should be detained in custody?"

The reply of the Law Member was clear - may be quoted:-

"Dr. Sir Mian Mohammad Shafi: - Sir, it was said that the sole object of arrest is to prevent a person from running away or from protracting or delaying the trial. As a general rule that is a perfectly legitimate criterion. I admit that that is the main purpose of arrest. But cases might be conceived where other considerations also come in. Let me give but one case which is not only possible but which we, some of us who have practiced at the Bar long enough, can well conceive. A man fails out with two brothers. Bitter enmity subsists between that one man on the one side and the two brothers on the other. He has a fight with these two brothers intending to kill them, but succeeds only in killing one and injuring the other He is arrested by the police. There is ample evidence against him to prove that he murdered one of the two brothers, and he knows himself that he cannot escape. He knows that he is sure to be convicted and hanged. Well, now, in a case like that, is it not conceivable that he would like to be released on bail in order to go and kill the other brother also before he is hanged? (Laughter). With all defence, I am afraid that my Honourable friends from the South do not know what stuff people of the North are made of. It is perfectly conceivable that that man may be anxious to be released on bail in orde to achieve the very object with which he assaulted the two brothers, which object he failed to achieve in the first instance, and succeeded only in killing the one and simply injuring the other brother; and knowing that he will be hanged, before he is actually hanged, he may take advantage of his release on bail to go and kill the other brother. Sir, with all deference it is hardly right to say that the sole consideration is his presence at the next date of hearing. There may be other considerations also which come in cases of this kind. It seems to me that taking all the circumstances into consideration, seeing that admittedly the clause as we propose it is a decided advance, a decided improvement in the existing law, seeing also that the clause as we propose it gives the fullest discretion to the Magistrate in even the most serious class of cases in certain instances to release on bail and prohibits release on bail only when circumstances or facts have been established which have led the Magistrate to believe or have reason to believe that the accused has committed the offence - only in this very narrow circle is he prohibited from releasing the accused on bail in this most serious of all crimes, -1 submit that the Legislature ought not to go beyond that, that the Legislature should limit in such cases the discretion of the Magistrate in so far as release on bail in non-bailable cases is concerned".

The Supreme Court in Sanjay Chandra's^[5] case observed that:

"21. The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

Thus, bail is not a punishment. Grant or refusal of bail is a balancing act between constitutional right of personal liberty of a person and safety and security of society at large. The courts must remember that bail is security of appearance of person during trial or investigation. The courts must ensure that accused is not in a position to tamper with the evidence or induce witnesses.

What Conditions can be imposed?

Article 21 enshrines that, "No person shall be deprived of his life or personal liberty except according to procedure established by law."

Often courts impose conditions while granting bail. In fact, CrPC expressly provides for the same under S.437. Like, to eliminate flight risk the court may ask person to surrender his passport^[6]. This is just condition. The Supreme Court in Sumit Mehta^[7] reminds that "any condition"

Used in the provision shouldn't mean absolute power on a court of law. The Court thus, observed in the Sumit Mehta case:

"15. The words "any condition" used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed."

Now, in the present case, the court imposes condition to make contribution to PM CARES Fund. The court needs to understand function and purpose of bail bonds. By bail bond sum of money or property is deposited with the court as an assurance for presence of accused. Once the person is convicted or acquitted the bail bonds are discharged i.e. the sum of money/property is returned. If the person's presence is not secured or he violates other provisions (like intimidating witnesses or tempering with evidence) then the bail bonds are cancelled. They are forfeited. Now, coming back to the present condition of making contribution to PM CARES Fund, once the amount is deposited in this fund can it be refunded on the ground that the person in question didn't violate any provision of law which could lead to cancellation of bail? Once the amount is deposited in the relief fund, it's a contribution. It cannot be a condition for securing the bail. Even if the accused persons made a submission before the court that they want to deposit certain amount to PM CARES Fund then also in my humble opinion court needn't go into the issue of contribution to the relief fund. As a citizen, the accused are more than welcome to make contribution. There is certainly no need to make song and dance about the same in the court of law. This is between the person contributing and the Fund. Where the court does comes in picture? That what be a different situation where court imposes cost and in its judicious discretion directs to deposit in PM CARES Fund or Advocate Welfare Scheme or whatever it may deem fit.

The second condition of bail to direct downloading of Aarogya Settu app is even more problematic. This is a clear case of being more executive minded then the executive. The Government and even the Prime Minister in his address to the nation have requested the citizenry to download this app. These are mere suggestions. The Jharkhand High Court makes this a condition for grant of bail! One can't help but simply be appalled by the direction in which the criminal jurisprudence is being navigated. What will be achieved by making this a condition for bail? Will this serve purpose of bail? How will it secure the presence of accused? Basic tech knowledge will tell that at any given point location of a mobile phone will be available to cellular tower. Plus, this app requires Bluetooth to be turned on. What if the accused download the app and turns off Bluetooth or the phone gets discharged? Will that be a breach and liable for cancellation of his bail. At this juncture, I am not even touching upon privacy aspect of app. Anybody who uses mobile phone has already shared his/her data with hundreds of other apps.

To conclude, the decision of the Jharkhand High Court to impose these additional conditions is in complete violation of tenets of not only criminal jurisprudence but also against the very basics of our Constitution.