by Advitiya
Introduction
The laws pertaining to bail constitutes an important branch of procedural law. Chapter XXXV (section 478-496) of the Bhartiya Nyaya Suraksha Sanhita (BNSS) comprehensively addresses the regulatory framework governing bails and bonds. The doctrine of bail emanates from the delicate balance between the police’s power to curtail individual liberty and the presumption of innocence afforded to the accused. The underlying rationale for granting bail is rooted in the fundamental principle that a person is presumed innocent until proven guilty, and therefore, is entitled to freedom and the opportunity to prepare a robust defense. However, since the individual is still undertrial, they cannot be released into society without safeguards. Therefore, courts have the authority to set conditions when granting bail to ensure the accused’s presence during the investigation and trial, without intending to harass the accused. In the case of Sunil Fulchand v. Union of India , the Supreme Court stated that “The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through sureties.”
The adjudication of bail is a discretionary determination to be made by the Court, informed by a careful evaluation of multiple relevant considerations. Such determination must be predicated upon well-established judicial norms and principles, and must avoid ambiguity and arbitrariness. However, in a recent judgement, the Patna High Court has imposed a peculiar condition for grant of bail wherein the victim should stand as the surety of the accused.
The aim of this article is to explore whether victim can serve as surety for the accused. The present article is divided into 2 parts: the first part will briefly discuss the provisions relating to conditions of bail and the second part will discuss whether the condition requiring victim to stand in as surety for the accused is acceptable or not.
I. CONDITIONS FOR GRANT OF BAIL
Section 398 of BNSS (Section 439 of the CrPC) empowers a High Court or Court of Session to order the release of an accused person in custody on bail. It also permits these courts to set any conditions deemed necessary, similar to those outlined in Section 398(3), for offences punishable by seven years or more in prison. These conditions include preventing the accused from committing a similar offence and from threatening individuals involved in the case.
The Apex Court has enunciated definitive parameters governing the judicious exercise of discretion in the grant or denial of bail, thereby providing a framework for courts to follow in determining whether to admit an accused to bail or to refuse the same. The court said – “Grant of bail, though is a discretionary order, it, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. A bail order without clear reasons cannot be upheld. The nature of the offence is one of the basic considerations for grant of bail – the more heinous the crime, the greater is the chance of rejection of bail, though, however, dependent on the factual matrix of the matter.”
However, the Patna High Court has imposed an unreasonable and onerous condition on the victim, requiring them to act as a surety for the bail of accused. In the present case, the accused sought bail from the Patna High Court in relation to an FIR filed at Bahera Police Station, Darbhanga, Bihar for an offence punishable under Section 366(A) read with Section 34 of the Indian Penal Code (IPC). This is an onerous bail condition as it will be extremely difficult for the accused to get the victim to stand in as his surety. This condition is against the effective administration of justice or the progress of the trial. Instead, this condition represents an arbitrary exercise that disregards the fundamental objectives of the granting bail.
The same has been held in plethora of cases: in Sandeep Jain v. National Capital Territory of Delhi, (CDJ 2000 SC 025) the Hon’ble Supreme Court has unequivocally ruled that any bail condition that imposes an excessive or unreasonable burden on the accused is unlawful and hence, invalid. In Sakthivel v. Inspector of Police, Belukurichi Police Station, Namakkal District, this Court also held that bail conditions must be reasonable, feasible, and enforceable, and should not be unduly harsh or burdensome, lest they become oppressive and unjust. The Hon’ble Supreme Court in Munish Bhasin & Others v. State (Government of NCT of Delhi) & Another, ruled that bail conditions should be fair and proportionate, avoiding any undue severity, oppression, or excessiveness that could effectively negate the very purpose of granting bail in the first place. Similarly, the Hon’ble Jharkhand High Court in Jitendra Oraon v. State of Jharkhand, emphasized that bail conditions must align with the objectives and purposes of bail. Furthermore, the Hon’ble Supreme Court in Yashik Jindal v. Union of India, criticized the imposition of onerous bail conditions.
The primary goal of bail is to release the accused from custody, ensuring their return to court to put up an effective defense. However, this objective should not be thwarted by imposing overly burdensome conditions that are impossible for the accused to fulfill. Such conditions would be tantamount to granting bail with one hand while simultaneously taking it away with the other, rendering the entire process futile.
II. VICTIM ACTING AS SURETY TO BAIL
A surety is an individual who provides a guarantee to the court that the accused will appear in court as required. According to Section 485 of the BNSS, a surety must be a suitable and reliable person. Although the term ‘fit person’ is not explicitly defined in the Sanhita, it generally refers to someone who is trustworthy and genuine. By becoming a surety, this person promises the court that they will ensure the accused’s appearance, and if the accused fails to show up, the surety’s bond will be forfeited as a consequence. Furthermore, if a surety begins to question the accused’s reliability or no longer wants to vouch for their appearance, they have the right to ask the Court to be relieved of their surety bond obligations. The Court cannot compel the surety to continue in this role once such a request is made. In such a scenario, the accused should be given the opportunity to find a new surety to replace the original one.
From the above discussion, there is no legal barrier preventing a victim from acting as a surety for bail. However, this condition is extremely difficult to meet as it is practically impossible for the accused to ask the victim to stand as surety. The same has been observed by Apex Court when the accused preferred an SLP before the Supreme Court. The Supreme Court has expressed displeasure at the High Court’s decision to grant bail with the condition that the victim act as surety. The bench has labeled the condition imposed as an ‘absurd condition’ and has stayed the bail condition of High Court and has ordered the release of the accused on subject to the terms and conditions that the trial court may deem fit to impose.
The Patna High Court has overlooked the fact that imposing certain conditions, such as requiring the accused to contact or interact with the survivor as part of their bail terms, can potentially cause the survivor further harm and trauma. In reality, such conditions are strictly prohibited, as they can lead to re-traumatization of the survivor. “The law does not permit or countenance such conduct, where the survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behavior what is a serious offence”.
Lastly, the Supreme Court in the case of Aparna Bhat and others v State of Madhya Pradesh and others, has held that bail conditions should explicitly prohibit any contact or communication between the accused and the victim, and instead, focus on ensuring the complainant’s safety and well-being by preventing further harassment or intimidation by the accused.
CONCLUSION
In conclusion, while there is no express legal prohibition preventing a victim from acting as a surety for bail, this condition is impractical and unreasonable. The Supreme Court has recognized the absurdity of such a condition, noting that it places an undue burden on the accused and exposes the victim to potential secondary trauma. Moreover, bail conditions must align with the objectives and purposes of bail and should not unnecessarily harass the accused. The Supreme Court’s decision to stay the Patna High Court’s bail condition and order the release of the accused under terms set by the trial court underscores the importance of making of appropriate bail conditions protecting the accused and victim from further harassment. Bail conditions should prioritize the safety and well-being of the accused and the victim, avoiding any mandatory or permitted contact between the accused and the victim, as established in the case of Aparna Bhat and others v. State of Madhya Pradesh and others.