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Report No. 36

26. Constitutional aspects of conditions of bail.-

We also considered the question whether there would be any objection, on the score of interference with fundamental rights, particularly under Article 19 of the Constitution, if conditions other than those intended to secure attendance are allowed to be imposed. We noted, that according to the decision of the Supreme Court1 judicial orders in or in relation to matters brought before adjudication before a Court cannot be said to affect Fundamental Rights. The relevant portion of the majority judgment may be quoted-

"(38) The argument that the impugned order affects the Fundamental Rights of the petitioners under Article 19(1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his adjudication, he first decides questions of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court.

But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the Fundamental Rights of the citizens under Article 19(1). What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more.

If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by thr Court in or in relation to a matter brought before it for its decision cannot be said to affect the Fundamental Rights of citizens under Article 19(1)."

1. Naresh v. State of Maharashtra, AIR 1967 SC 1 (11, 12), para. 38 (majority judgment).

27. We were, however, asked to consider whether, having regard to the fact that a condition intended to prevent repetition of an offence is not directly concerned with the proceedings before the Court which relate to the offence already committed, the majority judgment would cover it. We have come to the conclusion, that even as regards conditions intended to prevent repetition of another offence, there would be no constitutional objection. The reason is, that the need for such conditions arises because the person is suspected of a serious offence, thereby raising a possibility that he may commit a similar offence in the future.

The observation that bail cannot be punitive1 has, thus, to be qualified, to this limited extent, namely, in relation to the objective of deterrence of similar offences by imposing reasonable precautions.

1. Para. 19, supra.

Section 497, 498 and 499 of the Codeof Criminal Procedure, 1898 - Grant of Bail with Conditions Back

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