Anticipatory bail - are monetary conditions unreasonable?

The basis of AB under S.438 is the right to personal liberty under Article 21. To grant AB, Courts must consider whether the accusation has been made to harass or humiliate the accused by having him arrested, antecedents of the accused, if any, and a possibility of him fleeing from justice. The Court may also weigh in the nature and gravity of accusation.

The legislature acknowledges that while granting AB, the Court may in its discretion impose conditions under S.438(2), such as:

• Accused will make himself available for police interrogation,

• Accused shall not induce or threaten a person acquainted with the case to dissuade him from disclosing facts to the Court or police,

• Accused shall not leave India without Court’s permission, or

• Any other condition under S.437(3), such as submit a bond, not tamper with evidence, not commit a similar offence etc.

The SC has reasoned that since these conditions facilitate investigation into the offence and ensure that the trial proceeds fairly and timely, with the presence of the accused, they are reasonable and may be imposed by Trial Courts & High Courts. [Rakesh Kumar v. State of NCT of Delhi (2023) 7 SCC 461 affirming Sumit Mehta v State (2013) 15 SCC 570]

A condition, however, that does not fulfil these objectives, may be considered onerous and/ or unreasonable by the Court. In this regard, the Constitution Bench in Gurbaksh Singh Sibbia (1980) 2 SCC 565 said S.438 is a beneficial provision and cannot read conditions not found therein.

One such condition often imposed by Trial Courts is deposit of money by the accused as a pre-condition for grant of AB, especially in cases of cheating. This has been frowned upon by SC for the following reasons:

• Deposit of money, usually equivalent to amount in the FIR, is itself onerous since at the stage of AB, the Trial Court has not ascertained the veracity of the allegations [Sumit Mehta].

• It gives the impression that bail could be secured by depositing money ‘alleged to have been cheated’ [Rakesh Kumar].

• It has no connection whatsoever to the fairness or propriety of investigation or trial.

• It would also mean that the criminal proceedings against the accused have become a mode of recovery by securing monies in AB, which is not the intent of criminal law.

Such conditions have therefore been consistently set aside by the SC.

Hopefully, this law under S. 438 of CrPC would pave the way for S.482 of BNSS.