While Bail Conditions Must Be Achievable By Prisoner, Court Must Still Enforce Requirements Necessary To Ensure His Availability For Trial: Delhi HC

The Delhi High Court remarked that, while bail conditions must be achievable by the prisoner, the Court must still enforce those requirements that are necessary to ensure the availability of the prisoner.

The Court remarked thus in bail applications preferred by the Nigerian nationals, seeking modification of the conditions imposed on them for grant of regular bail.

A Single Bench of Justice Anup Jairam Bhambhani observed, “Upon reviewing the Supreme Court’s decisions in the Supreme Court Legal Aid Committee and Frank Vitus cases, it is clear that while bail conditions must be achievable by the prisoner, the court must still enforce those requirements that are necessary to ensure the availability of the prisoner for trial and for compliance with any sentence imposed, maintaining the integrity of the judicial process”

The Bench further explained that the conditions imposed for grant of bail or suspension of sentence must pass muster on the anvil of the following criteria:

• The conditions must be necessary to ensure that the accused remains available for trial.

• The conditions must be necessary to ensure that the integrity of the judicial process is preserved.

• The conditions must not be impossible for the accused to fulfill.

“Only then the conditions imposed meet the aforesaid three-fold test, would they be proportionate, fair and correct balance between the right of a prisoner to be able to avail their liberty and for the State to enforce the law”, it said.

Senior Advocate Rebecca M. John assisted the Court as Amicus Curiae, Advocate Lakshay Yadav appeared for the petitioners while Central Government Standing Counsel (CGSC) Amit Tiwari appeared for the respondent.

Brief Facts -

The petitioners did not avail the bail so granted and it was their contention that they have been unable to do so, since they are not in a position to fulfil the conditions imposed by the Court in their respective bail orders, for the reasons explained in the applications. The petitioners were both Nigerian nationals and it was the contention of the State that both petitioners had entered India on visas.

As per the State, the visas ran-out a long time ago and that the petitioners overstayed the term of their visas and were therefore presently illegal residents in India. By way of the applications, the petitioners sought modification of the conditions of bail on two counts: firstly, they sought reduction in the amount of personal bond that they were required to furnish; and secondly, they sought to be released only on deposit of cash with the Court in lieu of furnishing a surety bond, as was directed by the Court in their respective bail orders.

The High Court in view of the above facts, said, “It is permissible for a court to completely dispense with the requirement that an undertrial/convict must furnish a surety bond executed by a third person to avail bail or suspension of sentence … Waiver of the requirement of furnishing a surety or substituting surety with a cash deposit should not be granted for the asking; and where granted, such waiver or substitution should be guarded, to ensure that at least the fundamental requirement that an undertrial/convict must remain available to face trial or to undergo the punishment awarded, is not jeopardised.”

The Court emphasised that waiver or substitution of surety should be even more guarded where the prisoner is a foreign national, with the obvious heightened level of flight risk.

“Furthermore, substitution of a surety with a cash deposit is an absolute exception, since the intent and purpose of the court in asking for a surety is simply not served by accepting a cash deposit instead. To say that if an accused/convict flees while on bail, the worst that can be done to a surety is to encash the surety bond is not at all a full answer, since in the opinion of this court, the encashment of a surety bond is the residual obligation of the surety, the primary obligation being to produce the accused/convict when asked by the court”, it further noted.

The Court elucidated that the purpose of justice is not served, by merely ‘encashing’ a prisoner’s flight-risk; and merely accepting cash in lieu of surety would not uphold the integrity of the judicial process.

“In the opinion of this court, before a court waives the requirement of furnishing a surety or substitutes it with a cash deposit, it is necessary to duly consider the facts and circumstances of a given case, and if necessary to seek appropriate verification, to be satisfied that the prisoner suffers from a genuine inability to furnish surety”, it observed.

The Court also said that the requirement for a surety can only be waived if circumstances so warrant and substituting the need for a surety with a cash deposit is unacceptable.

Accordingly, the High Court disposed of the bail applications and modified the bail conditions.

Cause Title- Obi Ogochukwa Stephen v. State of NCT of Delhi (Neutral Citation: 2024:DHC:8035)

Appearance:

Petitioners: Senior Advocate Rebecca John, Advocates Lakshay Yadav, Chinmay Kanojia, Pravir Singh, Anushka Baruah, Ajunee Singh, Nilanjan Dey, Kirti Chauhan, Deepanshu Goswami, Rohit Sehrawat, and Akshay.

Respondent: CGSC Amit Tiwari, ASC Amol Sinha, Advocates Kshitiz Garg, Rajender Meena, Priyanshu, and Chetanya Puri.

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