S.167 CrPC - Arbitrary & Stringent Conditions On Default Bail Infringe Fundamental Rights Under Article 21: Kerala High Court

The bail application of the accused was allowed by the Sessions Court as the investigation was not completed even after sixty days of judicial custody. The Sessions Court whilst allowing the bail application under Section 167 (2) CrPC imposed stringent conditions which were challenged before the High Court.

Justice PV Kunhikrishnan, while lifting the stringent bail conditions imposed upon the accused observed that default bail was a statutory right that cannot be curtailed by imposition of onerous conditions.

“While imposing conditions in default bail, the Court can only impose such conditions to ensure that the accused will appear before the court concerned for trial and will also co-operate with the investigation. An accused in detention shall be released on bail after the period of detention mentioned in Section 167(2), if he is prepared to and furnish bail. This statutory right cannot be circumvented by imposing onerous conditions. Such arbitrary condition imposed while granting statutory bail amount to infringement of the fundamental right of the detenue under section 21 of the constitution of India.”

The petitioner was arrayed as an accused by the Police under Section 22 (punishment for contravention in relation to psychotropic substances) and 29 (abetment) of the NDPS Act. He was arrested in possession of MDMA and was produced before the Magistrate and sent to judicial custody.

The petitioner was granted bail as per Section 167(2) CrPC by the Sessions Court, Ernakulam because the investigation was not completed even after sixty days of judicial custody. In terms of Section 167(2), when the investigation was not completed by the police within fifteen days of police custody, then the accused will be sent to judicial custody for a period of sixty or ninety days, and after that, he has to be released on bail.

The Sessions Court whilst allowing the bail application imposed some stringent bail conditions and the impugned bail conditions were thus:

“3. One of the sureties shall be a close relative of the petitioner. The relative is not solvent, there shall be 3 sureties, of which one shall be the relative and others solvent sureties, 4. The sureties shall produce the original title deeds of their property along with a copy thereof. The original shall be returned after verification.”

The Court was informed that the petitioner hails from a poor family and was continuing in judicial custody even after bail was granted as he was unable to furnish bail bonds due to the above-mentioned unwarranted conditions.

The Court noted that the petitioner was granted default bail as per Section 167(2) CrPC after remaining in sixty days of judicial custody. It observed that bail was a statutory right. Relying upon the Apex Court decision in Shaik Nazneen v. State of Telangana and Others (2023), the Court held that when the petitioner was released based on default bail, there cannot be an imposition of stringent conditions.

The Court held that conditions were imposed while releasing on bail to ensure the presence of the accused before the Court for trial and to ensure his co-operation for investigation. It noted that the Court cannot impose stringent bail conditions that infringe the statutory right of detenu to be released on bail. The Court held that arbitrary or onerous conditions imposed upon the detenu were violative of his fundamental rights.

Accordingly, the Court set aside the two stringent bail conditions.

Counsel for the petitioner: Advocates Arun Roy and Ashitha Ria Merin

Counsel for the respondent: Public Prosecutor MP Prasanth

Citation: 2023 LiveLaw (Ker) 708

Case Title: Vishnu Sajanan v. State of Kerala, CRL.MC NO. 10253/2023

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