Supreme Court Sets Aside Unconventional Bail Conditions

Source: Supreme Court 

Why in News? 

Recently Justices Dipankar Datta and AG Masih observed that bail conditions not traceable to statutory provisions can generate further litigation while setting aside the Jharkhand High Court's decision to impose a pre-arrest bail condition requiring the accused husband to resume conjugal rights with his wife and maintain her with dignity and honour. 

• The Supreme Court held this in the matter of Anil Kumar v. State of Jharkhand & Anr. (2025). 

What was the Background of Anil Kumar v. State of Jharkhand (2025) Case? 

• The appellant-husband Anil Kumar was booked under multiple provisions including Section 498-A (cruelty), 323 (voluntarily causing hurt), 313 (causing miscarriage without consent), 506 (criminal intimidation), 307 (attempt to murder), 34 (common intention) of the Indian Penal Code, 1860 (IPC). 
• He was also charged under Sections 3 and 4 of the Dowry Prohibition Act, 1961. 
• The case involved domestic violence allegations where the spouses had seemingly drifted apart and resided separately for some time. 
• The appellant filed an anticipatory bail application before the Jharkhand High Court seeking pre-arrest bail. 
• The High Court agreed to grant pre-arrest bail but imposed an unconventional condition that the appellant shall resume conjugal rights with his wife and maintain her with dignity and honor. 
• Aggrieved by this condition, which could have given rise to further litigation, the appellant approached the Supreme Court. 

What were the Court's Observations? 

• A bench of Justices Dipankar Datta and AG Masih observed that the High Court committed an error in imposing a condition not traceable to Section 438(2) of the Criminal Procedure Code, 1973 (CrPC). 
• The Supreme Court noted that "The spouses seemingly, at one point of time, had drifted apart and resided separately for some time. Imposing a condition that the appellant would maintain the respondent no.2 with dignity and honour is beset with risk in that it can generate further litigation." 
• The Court emphasized that "the High Court should have considered the prayer of the appellant for pre-arrest bail entirely on its own merit instead of imposing a condition which is not traceable to Section 438(2), CrPC." 
• The Supreme Court highlighted the practical difficulties such conditions create, observing that "an application for cancellation of bail on the ground that such condition has not been complied with, if filed later, is bound to meet opposition from the appellant and could place the High Court in further difficulty." 
• The Court noted that "The High Court could find itself disabled to decide a disputed question of fact, in an application for pre-arrest bail." 
• Accordingly, the appeal was allowed, and the pre-arrest bail case was restored to the High Court's case file for fresh consideration. 

What is Section 438 of CrPC? 

About: 

• Section 438 of CrPC provides for "Direction for grant of bail to person apprehending arrest", commonly known as anticipatory bail or pre-arrest bail. 
• The provision allows a person to seek bail in anticipation of arrest when he has reason to believe that he may be arrested on accusation of having committed a non-bailable offence. 
• The section empowers the High Court or Court of Session to direct that in the event of such an arrest, the person shall be released on bail. 
• Section 438(1) requires courts to examine: crime seriousness, past criminal record, flight risk, whether complaint is fake to harass. Section 438(1A) & (1B) mandate 7-day notice to Government lawyer and Police chief, Government lawyer gets hearing chance, accused must attend final hearing if necessary.  
• Section 438(3) ensures if arrested later and ready for bail, must be released, magistrate issues bailable warrant only.  
• Section 438(4) prohibits anticipatory bail for gang rape, rape of children under 12, gang rape of minors. 

Section 438(2) - Conditions for Anticipatory Bail: 

• Section 438(2) empowers the court to impose conditions while granting anticipatory bail as it may think fit, including: 
  • Condition (i): That the person shall make himself available for interrogation by a police officer as and when required. 
  • Condition (ii): That the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 
  • Condition (iii): That the person shall not leave India without the previous permission of the Court. 
  • Any other condition which the Court may think fit to impose in the interests of justice. 
• The conditions must be reasonable and traceable to statutory provisions and should not create further complications or litigation. 
• Courts cannot impose arbitrary or unconventional conditions that go beyond the scope of criminal law and enter into civil or matrimonial disputes. 

Replacement under BNSS 2023: 

• Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 has replaced Section 438 of CrPC 1973, providing similar provisions for anticipatory bail. 
• The new provision maintains the same framework for conditions that can be imposed while granting pre-arrest bail. 
• Section 482(2) of BNSS provides similar conditions as the earlier CrPC provision, emphasizing that conditions must be reasonable and within statutory bounds.