Bail Condition Enabling Police To Constantly Track Movement Of Accused Can’t Be Imposed: SC

It is definitely most refreshing to note that while ruling in a bail matter, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Frank Vitus vs Narcotics Control Bureau & Ors arising out of Criminal Appeal @  S.L.P. (Crl.) No. 6339­6340 of 2023 and cited in Neutral Citation No.: 2024 INSC 479 that was pronounced as recently as on July 8, 2024 has minced just no words to hold unequivocally that there cannot be a bail condition that enables the police to constantly track the movements of the accused and virtually peep into the privacy of the accused. The Court held that, “The investigating agency cannot be permitted to continuously peep into the private life of the accused enlarged on bail, by imposing arbitrary conditions since that will violate the right of privacy of the accused, as guaranteed by Article 21.” 

It must be noted  that a Bench of Apex Court comprising of Hon’ble Mr Justice Abhay S Oka and Hon’ble Mr Justice Ujjal Bhuyan also ruled categorically that it is not permissible for courts to order an accused to share his Google PIN location with the police authorities as a condition for the grant of bail.  

We also need to pay attention that the Bench also made it indubitably clear that no court can impose bail conditions that frustrate the purpose of granting bail itself. The Bench reminded all the courts to ensure that bail conditions should be such that constitutional rights of an accused were curtailed only to the “minimum extent required” and to maintain restraint and refrain from imposing “fanciful, arbitrary or freakish” conditions. We must note that this decision of Apex Court arose from a special leave to appeal petition challenging the Delhi High Court’s interim bail conditions for Frank

Vitus who is a Nigerian national who is accused in a drugs case. It must be noted that in 2022 the Delhi High Court had mandated the accused and a co-accused to share their live location on Google Maps and obtain a certificate from the Nigerian High Commission confirming that they would remain in India and appear before the Trial Court.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Abhay S Oka for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Ujjal Bhuyan sets the ball in motion by first and foremost putting forth the factual aspects in para 2 stating that, “The appellant is being prosecuted for the offences punishable under Sections 8, 22, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (short ‘NDPS Act’).

The appellant was arrested on 21st May 2014. By the first impugned order dated 31st May 2022, the appellant was ordered to be enlarged on bail subject to various terms and conditions incorporated in the said order. The terms and conditions incorporated were in terms of the directions issued by this Court in paragraph no. 15 of its decision in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India & Ors (1994) 6 SCC 731.

The appellant was ordered to be enlarged on bail on his furnishing a bail bond in the sum of Rs. 1,00,000/- with two sureties in the like amount to the satisfaction of the learned Special Judge under the NDPS.”  

Most sagaciously, the Bench most forcefully underscores in para 7 postulating that, “A broader meaning cannot be assigned to the words “interest of justice” in Section 437(3) of Cr. PC. By borrowing the language used by this Court in the above decisions, we can say that the bail conditions cannot be fanciful, arbitrary or freakish.

The object of imposing conditions of bail is to ensure that the accused does not interfere or obstruct the investigation in any manner, remains available for the investigation, does not tamper with or destroy evidence, does not commit any offence, remains regularly present before the Trial Court, and does not create obstacles in the expeditious conclusion of the trial.

The Courts have imposed a condition that the accused should cooperate with the investigation when bail is granted before filing the final report or chargesheet. Cooperating with the investigation does not mean that the accused must confess. The conditions incorporated in the order granting bail must be within the four corners of Section 437(3).

The bail conditions must be consistent with the object of imposing conditions. While imposing bail conditions, the Constitutional rights of an accused, who is ordered to be released on bail, can be curtailed only to the minimum extent required. Even an accused convicted by a competent Court and undergoing a sentence of prison is not deprived of all his rights guaranteed by Article 21 of the Constitution. This Court in the case of State of A.P. v. Challa Ramkrishna Reddy (2000) 5 SCC 712 reiterated the settled position by holding as follows:

“22. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights.” (emphasis added.”    

Be it noted, the Bench notes in para 10.1 that, “In paragraph 10 of the affidavit, Google LLC stated that the user has full control over sharing PINs with other users. Moreover, it does not impinge on the user’s privacy, as the user retains full control. Moreover, it does not impinge on the user’s privacy, as the user retains full control.

Most importantly, it is stated that the PIN location does not enable real time tracking of the user or the user’s device. Therefore, the condition of the accused dropping a pin on Google Maps, as it stands, is completely redundant as the same does not help the first respondent.”   

Most significantly, the Bench minces absolutely just no words to mandate in para 10.2 holding that, “Imposing any bail condition which enables the Police/Investigation Agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21.

In this case, the condition of dropping a PIN on Google Maps has been incorporated without even considering the technical effect of dropping a PIN and the relevance of the said condition as a condition of bail. This cannot be a condition of bail. The condition deserves to be deleted and ordered accordingly. In some cases, this Court may have imposed a similar condition. But in those cases, this Court was not called upon to decide the issue of the effect and legality of such a condition.”   

 It is worth noting that the Bench notes in para 13 that, “Coming to the facts of the case, bail has been granted to the appellant firstly on the ground that the appellant has been implicated based on statements recorded under Section 67 of the NDPS Act, and that such statements are entirely inadmissible in view of the decision of this Court in the case of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1. So, bail has been granted on merits as well.

Secondly, the bail has also been granted relying upon what is held in paragraph 15 of the decision in the case of Supreme Court Legal Aid Committee vs Union of India (1994) 6 SCC 731. As the bail was granted on merits by relying upon the decision of this Court in the case of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, there was no reason for the High Court to have imposed all the onerous conditions incorporated in paragraph 15 of the decision in the case of Supreme Court Legal Aid Committee vs Union of India (1994) 6 SCC 731.”

As a corollary, the Bench then holds in para 14 that, “Therefore, in view of the above discussion, we are of the view that it is not necessary to refer the case to a larger Bench for reconsideration of condition No. (iv) in paragraph 15 of the decision in the case of Supreme Court Legal Aid Committee vs Union of India (1994) 6 SCC 731.”

Most rationally, the Bench then directs in para 15 that, “Based on our findings on the two issues mentioned above, we direct that the two conditions in the order granting bail to the appellant, namely, obtaining a certificate from the Embassy/High Commission and dropping a pin of Google Maps, shall stand deleted.”

Finally, the Bench then concludes by directing in para 16 that, “The case shall be listed on 15 July 2024 for passing final orders after considering the compliances made by the appellant so far.”

To sum up, the Apex Court has thus very rightly held that Courts can’t ask accused to share live location as bail condition. It is imperative that what the Apex Court has directed in this leading case be implemented by not only all the Trial Courts but also by all the High Courts in India. No denying or disputing it!

Written by:

Sanjeev Sirohi, Advocate, s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave, Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.

*Published as recieved.