Code of Criminal Procedure, 1973 – s.438 – Whether the High Court erred by putting onerous conditions on accusedappellant while granting provisional pre-arrest bail: Held: Courts have to be very cautious in imposing conditions while granting bail upon finding pre-arrest bail to be grantable – Conditions should be put warily, especially when the couple concerned who are litigating in divorce proceedings, jointly though lukewarmly, agreed to attempt to reconcile and re-unite – When the couple who are trying to bridge their emotional differences putting one among them under such an onerous condition would deprive a dignified life not only to the grantee but to both – The need to put compliable conditions while granting bail, recognizing the human right to live with dignity and with a view to secure the presence of the accused as also unhindered course of investigation, ultimately to ensure a fair trial – Conditions provided in the impugned order for the release of the appellant on the provisional bail cannot be sustained – The order granting the bail is made absolute and the appellant in the event of his arrest be released on bail – ‘Lex non cogit ad impossibilia’ means ‘the law does not compel a man to do what he cannot possibly perform’ – The impugned order stands set aside to the extent of putting onerous condition on pre-arrest bail. [Paras 8, 9, 10]
Bail – Marital dispute – Whether the conditions imposed on husband while granting provisional bail would ultimately benefit the couple going through a marital dispute: Held: Putting conditions as has been done in this case, requiring a person to give an affidavit carrying a specific statement in the form of an undertaking that he would fulfill all physical as well as financial requirements of the other spouse so that she could lead a dignified life without interference of any of the family members of the appellant, can only be described as an absolutely improbable and impracticable condition – Such conditions will only be counterproductive as it makes one spouse dominant over the other – In respect of matters relating to matrimonial cases, conditions shall be put in such a way to make the grantee of the bail as also the griever to regain the lost love and affection and to come back to peaceful domesticity. [Paras 7, 8, 9]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Gaurav Upadhyay, Hony. Associate Editor (Verified by: Shadan Farasat, Adv.). Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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