Report No. 268
C. Conditions That May be Imposed in Bail
11.10 A bail condition must not unreasonably violate the rights guaranteed by the Constitution. If the prosecution cannot show through evidence that the person accused of an offence is at the risk of absconding, or is likely to interfere with the judicial process, or is likely to commit the same offence, the accused person should be considered eligible for release, without or with such financial obligations that are not excessive or onerous. The court should consider the unique circumstances of each accused person and develop a method to ensure that bail conditions are effective.
For example, if the accused person is a driver by profession, then, even though the offence he is accused of is not related to his work, the Court may require him to deposit his driving license, as a pre-condition for release. Requirement of financial obligations, either through the execution of a personal monetary bond, or through sureties should be the last resort, when no other method is likely to work. If the court seeks the deposit of identity cards, driving license or other documents, it should make available an attested copy of the document to the accused person, certifying that the original has been deposited with the court. Such attested copies should be permitted as proof of identity for availing State benefits, etc.
11.11 In determining whether the person is likely to abscond, the court should look at factors other than monetary considerations that may keep the person accused of an offence within the jurisdiction of the court, such as the presence of family, job, other roots in the community etc. However, an accused person should not be denied bail only because he is a migrant in the city of arrest and does not have ties with the local community. The appearance of such a person may be enforced through other means, as for example through informing the police of the place of ordinary residence of the person accused of an offence that such accused is on bail and if he is seen in his home district, it should be checked whether he is in compliance with his bail conditions.
11.12 If the Magistrate is of the opinion that the person accused of an offence is at risk of absconding, sureties may be imposed. Surety may be personal surety or a third person surety and should be according to the paying capacity of the accused person. In determining the conditions of bail, the Court should take into account the financial status of the person accused of an offence, and shall ensure that the conditions of bail are not excessive or unduly onerous. Sureties should not be rejected solely on the ground that they are not locally situated. To alleviate concerns regarding the availability of the surety in case of forfeiture, courts should be allowed to direct, that the surety papers be deposited with the court which has jurisdiction where the surety is located, and that such court can proceed against the surety in case of forfeiture.
11.13 Some conditions that may be imposed are:
- abide by specified restrictions on personal associations, place of abode, or travel;
- avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offence;
- report on a regular basis to a designated law enforcement agency;
- refrain from possessing and surrender if in possession of any firearm, ammunition, destructive device, or other dangerous weapon;
- undergo available medical, psychological, or psychiatric treatment, and remain in a specified institution if required for that purpose;
- satisfy any other condition that is reasonably necessary to secure the appearance of the person as required, and to ensure the safety of any other person and the community;
- surrender of passport or travel document in the possession of the accused, in case, the accused does not have one, he may be prohibited from obtaining one;
- accused may be mandated to seek or maintain employment or enter into any educational programme;
- refrain from attending such premises or any other place as the court may specify;\abides by any restriction on his travel or movement; or
- abides by specific restrictions on his speech and expression.
11.14 This list is not exhaustive, any of the above conditions or a combination thereof may be imposed by the court. The bail must be granted subject to the least restrictive conditions to ensure the appearance of the person accused of an offence and the safety of the community.
11.15 In evaluating the validity of conditions or restrictions of pre-trial detention that implicates only the protection against deprivation of liberty without due process of law, the proper inquiry in cases must be made, whether those conditions or restrictions amount to punishment for the detainee270. Ensuring the maintenance of law and order, peace and public safety are valid objectives of the State that may at times justify imposition of restrictions on freedom granted to the accused person enlarged on bail.