Is Court justified to ask woman to donate 5 Quran books to Muslim bodies, to get bail for offensive social media post?

https://www.thehindu.com/news/national/other-states/donate-quran-courts-bail-condition-to-woman-arrested-for-offensive-post/article28491887.ece?homepage=true

Asked anonymously 11 months ago
AS
Ashok Dhamija, Supreme Court Advocate, Ex-IPS, Founder of chAnQya.com
Answered 11 months ago

This type of order passed by a court, imposing condition of distributing copies of Quran to Muslim bodies for grant of bail to the accused, is extremely rare.

I happen to be the author of a book on “Law of Bail, Bonds, Arrest and Custody”, which is a 1600+ pages book. For the purposes of that book, I have studied tens of thousands of judgments of the Supreme Court and various High Courts. Despite this, I have not come across an order of this type which has been passed by the Jharkhand court in this matter.

No doubt, the court has the power to impose conditions for grant of bail to an arrested accused person, but there is no specific provision for this type of condition imposed by the court, whereby the accused is asked to distribute copies of Quran or any other religious book to the opposite party or the affected party or to repent for the act constituting the offence.

The power of a Magistrate court to impose conditions at the time of granting bail is contained in Section 437(3) of the Criminal Procedure Code, which is reproduced as under:

“(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions,—

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such 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 or tamper with the evidence,

and may also impose, in the interests of justice, such other conditions as it considers necessary.”

It is quite clear from the above that the main purpose of imposing conditions for grant of bail is to ensure that the accused person remains present during court hearings, he does not commit a similar offence in future, he should not threaten witnesses or make any inducement or promise to them, or he should not temper with the evidence, or he should not abscond, etc.

Of course, the above legal provision also mentions that the court “may also impose, in the interests of justice, such other conditions as it considers necessary”. However, generally, it is a well established principle of law that in such situations the principle of “ejusdem generis” applies, which means that a general term describing a list of specific terms denotes other things that are like the specific elements. Thus, when some specific conditions are mentioned in the Section and there is a general condition, then usually the general condition should be of the same type as the specific conditions.

In any case, by asking the accused person to distribute Quran books is like deciding the guilt of the accused at the stage of grant of bail itself and asking him or her to repent.

At the time of grant of bail, the court has to look at various considerations, such as: gravity of the offence, likelihood of the accused to abscond, likelihood of destroying evidence or threatening witnesses, and many similar factors.

But, asking the accused person to distribute a religious book is like asking the accused to “repent” for his or her action, which is like deciding the guilt at the bail stage itself.

Therefore, in my personal opinion, the court could have granted bail or could have refused to grant bail (if such refusal was justified in the circumstances, depending on nature of offence and other factors, etc.), but imposing such conditions for grant of bail does not appear to be the intention of the law-makers.

It is true that the parents of the girl, who has been granted bail after she wrote an offensive post on social media, are feeling happy and relieved after she got released on bail and they may not challenge such order imposing the above condition, yet the fact remains that the condition imposed on her for distributing 5 copies of Quran does not appear to be a correct decision.

In the end, let me clarify that I am not commenting on the merits of the offensive post written by the accused girl, and I am not defending her action if he wrote something offensive. I am writing on the point of the nature of condition imposed for grant of bail.

About the Author:
AS
Ashok Dhamija
Supreme Court Advocate, Ex-IPS, Founder of chAnQya.com