Bail Condition Requiring Accused To Appear In Police Station May Lead To Human Rights Abuses, Give Scope Of False Allegations: Gujarat HC

It is definitely not something that can be dismissed lightly or brushed aside as it is none other than the Gujarat High Court at Ahmedabad which in its learned, laudable, landmark, logical and latest oral judgment titled Kadarsha Latifsha Saiyed Thro Jamilsha Kadarsha Saiyed vs State of Gujarat & Anr in R/Criminal Revision Application (Against Order Passed By Subordinate Court) No. 1058 of 2024 and cited in Neutral Citation No.: 2024:GUJHC:37264 and also in 2024 LiveLaw (Guj) 96 that was pronounced as recently as on 19/07/2024 has minced just no words to hold that bail condition requiring accused to mark his presence before the concerned police station could lead to grievances, potential human rights abuses and false allegations. We must note that the damning observation came while hearing a revision application challenging order of a Magistrate Court which had cancelled applicant’s bail. This was after the Investigating Officer reported breach of bail condition requiring applicant to mark his presence at the police station on a specified day.

By the way, we also ought to note that the Gujarat High Court further stated that conditions requiring regular appearances before the Investigating Officer could lead to unnecessary friction and potentially enable the Officer to undermine the Court’s order, particularly in this case where the applicant was permitted to attend ‘Haj’. The High Court also indicated that the intentions of the Police in this matter needed scrutiny. Consequently, the Gujarat High Court allowed the application thus deeming the order of the Judicial Magistrate as ‘unjust, illegal and improper’ and thus quashed and set it aside. Additionally, we also see that the Gujarat High Court cancelled the order forfeiting the sum of Rs. 1,00,000/- directing that this amount be returned to the applicant, who, upon returning from ‘Haj’ is to mark their presence before the concerned Court. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced oral judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Gita Gopi of Gujarat High Court at Ahmedabad sets the ball in motion by first and foremost putting forth in para 1 that, “RULE returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent – State.”

As we see, the Bench specifies in para 2 stating that, “By way of this application filed under Section 379 and 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘Cr.P.C.’), the challenge is made to the legality and validity of the order dated 07.06.2024 passed by the learned Judicial Magistrate First Class, Mandvi, Kutch in Criminal Miscellaneous Application No.166 of 2024 whereby the application preferred by the respondent authority under Section 439(2) of the Cr.P.C. came to be allowed and the regular bail granted in favour of the applicant was cancelled. Further, the applicant alongwith the other co-accused were ordered to be taken into custody and an amount of Rs.1,00,000/- deposited as per the suspension of condition for a limited period was ordered to be forfeited. Being aggrieved and dissatisfied with the same, the applicant has come in this Criminal Revision Application contending the impugned order passed is unjust, improper and against the settled legal position of law.”

To put things in perspective, the Bench envisages in para 3 that, “As per the facts of the case, an First Information Report (FIR) came to be filed with Mandvi Police Station as ‘A’ Part C.R. No.190 of 2024 for the offences punishable under Sections 365, 341, 323, 506(2), 120B and 188 of the Indian Penal Code, which was lodged on 10.05.2024 for the incident alleged to have occurred on the same day. As per the complainant, two days prior to the FIR, there was some grievance with regard to the running of a political party and therefore, an altercation had taken place and the FIR came to be filed alleging the injuries caused on account of the altercation. It is further submitted that the applicant was granted bail vide an order dated 24.05.2024 by the learned Judicial Magistrate First Class, Mandvi, Kutch in Criminal Miscellaneous Application No.166 of 2024, and one of the conditions for bail was that till the filing of the charge-sheet, the applicant was to mark his presence at the concerned Police Station, every first and 16th day of the month between 11.00 a.m. to 2.00 p.m. It is further submitted that a Report was filed by the Investigating Officer alleging breach of the conditions of bail on 01.06.2024; urging that the present applicant failed to mark his presence as per the order of the Court. It is further submitted that a reply was filed by the applicant before the learned Court stating that the applicant is a Scholar of Muslim Community and since there was a death of one – Nograni Kursumbai on 01.06.2024, the applicant had to attend the last rituals and because of that, the applicant could not mark his presence between 11.00 hours to 14.00 hours, but on the very same day, at 17.00 hours, the applicant had remained present before the Investigating Officer but since the other accused were not present, the Agency had asked the applicant to come with the other co-accused and by the time, they appeared before the Investigating Officer, it was conveyed to them that the time to report is over and accordingly, their presence was not actually marked.”

As it turned out, the Bench enunciates in para 8 that, “Having heard the submissions canvassed and on perusing the records of the case, the bail has been granted qua the applicant after having considered the relevant considerations regarding seriousness of the offence, the emerging evidence and the circumstances which are peculiar to the case, the likelihood of accused fleeing from justice, tampering of evidence, reliance of prosecution witness etc. After having considered all the above facts, the bail granted should not be cancelled mechanically unless and until some supervening circumstances are brought to the notice of the Court.”

While citing the relevant case law, the Bench observes in para 15 that, “The Hon’ble Supreme Court in case of Gurcharan Singh & Ors. Vs. State (Delhi Administration), reported in (1978) 1 SCC 118, held two paramount considerations, while considering petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, there is likelihood of the accused fleeing from justice and his tampering with prosecution witnesses. Both of them relate to ensure a fair trial of the case. Therefore, to ensure a fair trial, all considerations are explored while granting bail. Thus, when the question is raised on the power to cancel bail, the same has to be exercised with great care and circumspection. Cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail.”

Do note, the Bench notes in para 17 that, “As per the facts of the case, it appears that such order which was granted by the concerned Court was not found favorable by the Investigating Officer. Hence, in order to see that the order gets frustrated, the Report has been filed by the Police to urge that on 01.06.2024, though the applicant was bound to attend the Police Station between 11.00 a.m. to 2.00 p.m. but had failed to do so and his delayed presence on that day has been considered as breach of the conditions of the learned trial Court. Once a discretion has been exercised for granting of bail for a person, it should not be cancelled as that would affect the liberty of the accused since the bail granted is only after considering all the ingredients necessary to enlarge the person on bail. It is not the case that the applicant had not attended the Police Station on that day. The conditions of bail are to ensure that the accused would be available for trial. The learned Court should only be concerned about accused’s availability during the trial.”

Be it noted, the Bench notes in para 18 that, “Such conditions for marking presence before the Investigating Officer would always create friction and would unreasonably call for the unfavorable situation which would give leverage to the Investigating Officer, to even frustrate the order of the Court wherein in this case, the applicant was even permitted to attend ‘Haj’. The intention of the Police was also required to be examined by the Court.”

Most significantly, the Bench underscores in para 19 postulating that, “It is needless to point out that such conditions of marking presence at Police Station would invite many grievances which may also lead to abuse of human rights and may give a scope of false allegations which would lead to multiplicity of proceedings and unverified aspects. Many a times, the CCTV Footage would not be available to the Court to verify the aspect about the authenticity of the claims and counter claims.”

It is worth noting that as a corollary, the Bench hastens to add in para 20 directing that, “In view of the aforesaid discussion and for the reasons given hereinabove as well as considering the ratio laid down in the above decisions, this application succeeds. The order dated 07.06.2024 passed by the learned Judicial Magistrate First Class, Mandvi, Kutch in Criminal Miscellaneous Application No.166 of 2024 is unjust, illegal and improper and therefore, the same is quashed and set aside. Further, the order passed forfeiting the amount of Rs.1,00,000/- stands cancelled and this amount be paid to the applicant herein, who on his return from ‘Haj’, shall mark his presence before the concerned Court.”

Finally, the Bench then concludes by directing in para 21 that, “Rule is made absolute to the aforesaid extent. Direct Service is permitted.”

In summary, it is high time and what the Gujarat High Court has voiced its apprehensions of bail condition requiring accused to appear in police stations must be done away with by all the Courts. The Single Judge Bench comprising of Hon’ble Ms Justice Gita Gopi has most rightly pointed out about onerous and cumbersome conditions imposed for granting bail that bail conditions requiring accused to appear in police station may lead to human rights abuse and give scope of false allegations and so must be done away with! It brooks no more delay anymore. Similarly, imposing huge amount as surety by the Courts must also definitely be done away with as it is the “poorest of the poor” who have to suffer the most due to their miserable financial conditions and have to be in jail for a very long time before even being pronounced guilty by the Court and the accused who are rich and powerful many times get away even after committing the worst crimes. This worst raw, rotten and ruthless discrimination between the rich and the poor most irrationally must be also definitely done away with at the earliest! It too brooks no more delay any longer now! There can be just no denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.