Discretion in granting bail can’t be used arbitrarily

Faizan Mustafa

Vice-Chancellor of NALSAR University of Law, Hyderabad

The Supreme Court, in the PN Kumar (1987) judgment, paid rich tributes to our High Courts by observing, “Each High Court has its own high traditions. They have judges of eminence who have initiative, necessary skills and enthusiasm. Their capacity should be harnessed to deal with every type of case arising from their respective areas, which they are competent to dispose of.” This author is in complete agreement with this statement of the apex court about the general quality of our High Court judges. But here, we would examine some recent bail orders to see how judicial discretion in granting bail or imposing conditions on grant of bail have been exercised by our judges.

There are two types of crimes: bailable and non-bailable. In the former, bail can be claimed by the accused as a matter of right. In the latter, bail is at the discretion of the judge. In Govind Prasad (1975), the apex court rightly held that the grant of bail is indeed a judicial act, not a ministerial one. The discretion cannot be arbitrarily exercised. In Harnairain Singh (1958), the Supreme Court itself said that this discretion must be judicially exercised, subject to restrictions mentioned in Section 437 of the CrPC and keeping in view the enormity of the charge, the nature of accusation, severity of punishment on conviction, possibility of accused absconding if released on bail, the danger of evidence being tampered with, health, age and sex of accused etc. The court may also impose ‘in the interests of justice’ such conditions as it considers necessary.

A few days ago, the Madhya Pradesh High Court granted bail to one Vikram Bagri, who was in the Ujjain jail for two months on charges of assaulting a woman with the intent to outrage her modesty under Section 354 of the Indian Penal Code, 1860. In a strange and controversial order, the court directed the accused to visit the house of the victim on Raksha Bandhan (August 3) with a box of sweets and request her to tie a Rakhi and ‘promise to protect her to the best of ability for all times to come’. He was further directed to give the new sister a gift of Rs 11,000 as per the Raksha Bandhan ritual and Rs 5,000 to her son for clothes and sweets. Saying the order will not influence the trial is neither here nor there as it is absolutely patriarchal and undermines women’s independent agency. Our women do not need anybody’s protection as they are equal to our men. They definitely do not need protection from those who are alleged to have tried to molest them. Indian jurisprudence on Article 14 has moved away from this dated idea of women being weak and requiring special treatment or protection.

The Bombay High Court had given bail to a rape accused so that he could mediate with the victim. The Supreme Court had to intervene to get the bail cancelled. In granting bail to Swami Chinmayanand (2020), a former Union minister and BJP leader who was accused of sexual harassment of a female law student of his college, the Allahabad High Court made comments against the victim for not speaking up about her painful experience of sexual harassment. Victim-shaming should have been avoided.

Some strange bail orders were passed during the Covid-19 pandemic. On June 29, the MP High Court, in the Arvind Patel (2020) case, while granting bail to a man accused of attempt to murder, imposed the condition of installation of an LED TV at a local hospital, manufactured in any country except China, worth Rs 25,000. The High Court granted bail to the accused with the condition of him giving five litres of an alcohol-based sanitiser and 200 face masks of good quality. On July 1, the MP High Court granted bail in 15 cases and directed the accused to act as shiksha swayamsevaks in government primary schools. In the Dilip Vishvakarma (2020) case, the High Court similarly imposed the condition of contributing Rs 10,000 to PM Cares and work as volunteer for at least three hours for a week while granting bail to a petty shopkeeper for opening his shop during the lockdown and not ensuring the desired social distancing. The shop was part of the accused’s house. No one bothered about the much bigger crowds at liquor shops.

In the Badal Singh (2020) case, the MP High Court granted bail to a person accused of a crime under the SC/ST Act and directed him to act as a Covid-19 warrior. The District Magistrate was given the right to decide the nature, quantum and duration of this so-called voluntary work. Here, the Special Judge (Atrocities) had denied bail but the High Court held that the ‘trial is not likely to conclude in the near future and prolonged pre-trial detention being anathema to the concept of liberty, this court is inclined to grant bail’. Unfortunately, the same did not happen in the case of activists like veteran poet Varavara Rao even after he tested positive for Covid-19. But Maya Kodnani, who was convicted in the Naroda Patiya riot case, in which over 90 people were killed, and was undergoing 28 years’ imprisonment, was granted bail on July 30, 2014, on the grounds of ill-health.

In January 2020, the Supreme Court granted bail to 13 convicts of a post-Godhra massacre in which 33 people were burnt alive in Sardarpura. The court asked them to do social service and stay out of Gujarat. In granting bail to the three men who allegedly murdered Pune techie Mohsin Shaikh in 2014, the Bombay High Court observed that the ‘fault of the deceased was only that he belonged to another religion’.

The judicial discretion in granting bail cannot be used in an arbitrary manner — sound discretion is guided by the law; it cannot be vague and fanciful.

Views are personal