Bail condition requiring accused to mark presence in police station may lead to human rights abuse: Gujarat High Court

The Gujarat High Court recently said that the bail condition requiring an accused to mark his presence before the concerned police station may lead to abuse of human rights [Kadarsha Latifsha Saiyed Thro Jamilsha Kadarsha Saiyed vs State Of Gujarat & Anr]..Justice Gita Gopi observed that the conditions of bail are to ensure that the accused remains available for trial. The court should only be concerned about the accused's availability during the trial, the bench said.Such conditions for marking presence before the Investigating Officer (IO) would always create friction and unreasonably call for the unfavourable situation which would give leverage to the police to frustrate the court order, it added.“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,” the Court said. .The Court made the observations while dealing with a petition challenging a Judicial Magistrate's order to cancel the bail of an accused on an application moved by the prosecution. The prosecution had stated before the trial court that the accused under one of the bail conditions was to mark his presence at the concerned Police Station, every first and sixteenth day of the month between 11 am to 2 pm. However, as per prosecution, he was late to report to the police station on June 1. On the basis of the rosecution’s version, the Magistrate on June 7 cancelled the bail that had been granted to the accused on May 24. .The accused in response clarified that he is a scholar of Muslim community and since there was a death of a person on June 1, he had to attend last rituals and thus could not mark his presence between 11 am and 2 pm. It was submitted that the accused had remained present before the IO later at 5 pm but was asked to come with other accused. By the time they appeared before the IO, they were told that the time to report was over.Challenging the cancellation of bail, the counsel representing the accused argued that the IO could have relaxed the time slot. The High Court was also told that the Judicial Magistrate had forfeited the ₹1 lakh deposited by the accused when he was allowed to travel to Saudi Arabia for Haj..In its order dated July 19, the High Court said the bail granted to the accused should not have been cancelled so mechanically unless and until some supervening circumstances were brought to the trial court’s notice.Justice Gopi also opined that an accused would always have the liberty to request the IO to relax the time slot for marking his presence.“The only intention of putting the condition is to note the presence on that date as directed. Such specific direction does not amount to suggest that the Investigating Officer cannot relax the time or the date for marking presence. The Officer could have reported before the concerned Court of the inconvenience of the accused and rather should have accommodated the accused,” the Court said..It added that delay in marking presence cannot be considered as a supervening circumstance to justify cancellation of bail.“In the present case, the applicant was even permitted to attend ‘Haj’ for the period between 06.06.2024 to 20.07.2024 and such permission was granted by suspending the conditions taking into consideration all the facts that the applicant would attend the trial in connection with the subject First Information Report,” the Court noted further..After examining the facts of the case, the Court opined that it appeared that the police wanted to frustrate the bail order.Once a discretion has been exercised for granting bail to 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, the Court observed.“It is not the case that the applicant had not attended the Police Station on that day,” the Court said, while setting aside the bail cancellation order as “unjust, illegal and improper," the Court stated. The Court also cancelled the order by which the ₹1 lakh deposited by the accused was forfeited. It directed that the amount be released to the accused, who shall mark his presence before the trial court..Advocate Ashish M Dagli represented the accused.Additional Public Prosecutor Hardik Mehta represented the State.[Read Judgment]