CONDITIONS OF ANTICIPATORY BAIL

Arbitrary and unreasonable Conditions cannot be imposed while granting anticipatory bail relating to the offence under section 498A IPC.

*By Mahesh Tiwari

In a very recent case (Criminal Appeal No. 3701 of 2023) on 05.12.2023, a bench of the Hon’ble Supreme Court, highlighted the legal position with respect to the conditions imposing by the Court while granting anticipatory bail in connection with the offence under section 498A case and ruled that arbitrary and unreasonable Conditions cannot be imposed while granting anticipatory bail pertaining to the offence 498A IPC.

In the above cited case, the petitioner/ husband had filed an application vide A.B.A NO.2025 of 2021 for grant of anticipatory bail before the High Court of Jharkhand in connection with the offence registered against him under section 498A IPC. The Court had allowed his bail application vide order dated 10.08.2021 on the condition that “the appellant shall take the respondent No.2 (wife) to his house at Pandra locality of Ranchi and maintain her with full dignity and honour as his lawful wife.”

Being aggrieved with the said condition imposed upon the petitioner/ husband, he had filed an application vide Cr.M.P No.2419 of 2021 for modification of the said order thereby praying for deletion of the condition imposed upon the petitioner/ husband. The High Court dismissed his application vide order dated 17.06.2022 on the ground that “in view of the adamant attitude of the appellant in not resuming the conjugal life with the opposite party No.2 in the house of the appellant, where the opposite party No.2 was staying, his petition could not be considered” . So on this sole ground his application was rejected.

The petitioner had challenged the said order dated 17.06.2022 passed by the High Court before the Hon’ble Supreme Court by way Special Leave Petition (Crl.) which later on converted in to the Criminal Appeal No.3701/2023 as mentioned above.

The Hon’ble Supreme Court vide its final order dated 05.12.2023 has sets aside the order passed by the High Court and while allowing the petition filed by the petitioner/ husband also observed that “In our opinion, neither such condition should have been imposed by the High Court while granting an anticipatory bail, nor such could be a ground for rejection of the petition filed by the appellant. Having regard to the facts and circumstances of the case, the impugned order deserves to be set aside and is accordingly set aside. It is directed that in the event of the arrest of the appellant in respect of the Complaint Case No.3004 of 2018 filed under Section 498A of IPC, pending in the Court of Chief Judicial Magistrate, Ranchi, he shall be released on bail, on the conditions that may be imposed by the said Court.”

The provision of anticipatory bail is provided under section 438 of the Code of Criminal Procedure 1973 which speaks as under:- 

438. Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail, and that Court may after taking into consideration, inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation

(ii) the antecedents of the applicant including the fact as to whether ha has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence.

(iii) the possibility of the applicant to free from justice, and 

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

Either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

Conditions which can be imposed upon the accused while granting anticipatory bail:-

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.

So by virtue of the settled provisions of law, the Hon’ble Supreme Court has observed that the condition imposed by the High Court, mandating the resumption of conjugal life at a specified place as a prerequisite for anticipatory bail, was unjustified and such condition which is beyond the scope and ambit of the section 438 Cr.P.C, could not be imposed upon the accused/ petitioner.

*The writer is a practicing Advocate in the Supreme Court of India. The views are personal which are based on the judgment passed by the Hon’ble Supreme Court. The contents are not for the purpose of legal advice.