Report No. 36
9. Case-law as to conditional bail-Sections 497 and 498.-
So far as the first point1 is concerned, the position is not entirely satisfactory. A few illustrative cases may be mentioned to show the existing position. Before the Calcutta High Court,2 the question arose whether, in the case of an offence under section 124A, Indian Penal Code (a non-bailable offence), a condition could be imposed to the effect that the person released on bail would not deliver any speech until disposal of the case. The condition was regarded as beyond the competence of the Court. It was stated, that only a condition for "attendance in Court" could be imposed.
In an early Calcutta case,3 the conditions were as follows:-
"The sureties in each case must be zemindars of the district whose names as such are written in the town of the Collector, and no one zemindar will be accepted as surety for more than one of the accused, i.e., there must be twice as many zemindar sureties as there are accused". As to this condition the High Court observed-
"This would make it necessary that the accused should find sixteen zemindars to give bail for them. The Judge, upon an application under section 436, reduced the security required for the appearance of the accused from rupees 96,000 to rupees 6,000."
We may observe 'that the conditions that the sureties should be zemindars and that no one zemindar should be accepted as surety for more than one of the accused, throwing unnecessary difficulties in the way of the defendants procuring bail, were illegal, and such as the Magistrate had no right to impose.'.
1. Para. 8(i), supra.
2. Giani Mehar Singh v. Emp., ILR (1939) 2 Cal 42: AIR 1939 Cal 714: 43 CWN 639 (Edgeley J.).
3. Mahesh Chandra Banerjee (in re:), (1870) 13 WR Cr 1: 4 Bengal LR Appendix 1, 10.
10. In another Calcutta case,1 (which did not involve any question of the validity of conditions generally), a condition imposed on A that he should not leave the limits of Midnapore was set aside, as A was living with his family at Kharagpur. The High Court regarded the condition as one which the accused could not possibly comply with, and, which was, therefore, "tantamount to refusing the bail".
In an earlier Calcutta case,2-3 a condition was imposed with the consent of the accused that "he be guarded at his own house and debarred from all communications with persons said, rightly or wrongly, to be his associates in crime".
1. Kamla Pandey v. King, AIR 1949 Cal 382: 53 CWN 699 (Harries C.J. and J.P. Mitter J.).
2. Rajah Narendra Lal Khan v. K.E., 13 CWN 43 (50) (Shurfuddin and Coxe JJ.).
3. For comment, see E.H. Monnier Article on Bail, 13 CWN (Journal), pp. 3 (5) and Editorial Note in 13 CWN (Journal), p. 9.
11. The Madras High Court1 and the Andhra Pradesh High Court2 have upheld conditions under section 497.
1. Varadaraja (in re:), (1957) 1 MLJ Cr 717 (Ramaswami J.) (Review cases) noted in AIR 1965 Andh 444.
2. Saradamma (in re:), AIR 1965 Andh 444 (Vankatesam J.).
12. A condition that the accused should report every day at the police station has been upheld in a Madhya Pradesh case, as not restrictive of his movements.1
A restriction to the effect that the accused should be kept in a "Mahila Ashram" was held by the Chief Court of Oudh to be void, on the ground that the accused is not "released" within the meaning of section 500, and that the court has no power to put any restrictions on the movements of the accused.2
"So long as the accused lived in the Mahila Ashram under the order of the Court, she was virtually in the custody of the Court."
1. 1964 Jab ILR 277, cited in P. Ramanatha Iyer Code of Criminal Procedure, (1965), Vol. 3, p. 2286.
2. Raghubar Dayal v. Emp., ILR 13 Luck 720: AIR 1938 Oudh 81 (82).
13. As regards powers of the High Court under section 498, it was observed in a Nagpur case,1 that the court was unaware of any restrictions on the High Court's power of imposing conditions on which it grants bail. "It is open, for instance, to the High Court in granting bail, where an accused person has been convicted of making a seditious speech, to impose the conditions that the accused should abstain from addressing any public meeting or publishing any matter until the decision of the appeal."
1. Adkoo Umrao v. Emp., ILR 1939 Nag 170: AIR 1938 Nag 420 (421) (Grille J.).
14. In a Lahore case,1 the validity of a condition imposed by the Magistrate under section 497 to the effect that the person released shall attend the investigation when needed, was upheld: (On the merits, however, the condition was set aside).
1. Kimat Rai v. Emp., AIR 1945 Lah 215 (216) (Munir J.).