Institute of Legal and Management Studies

Recently, the Supreme Court set aside a Madhya Pradesh High Court order suspending the sentence of a murder convict, holding that the condition imposed -requiring the appellant to plant ten saplings of fruit-bearing, neem, or peepal trees “as a matter of social cause” -cannot withstand the test of bail jurisprudence. The Court expressed displeasure over such directions, observing that reformative measures or acts of social responsibility cannot serve as standalone substitutes for the statutory requirements governing suspension of sentence or grant of bail.

Can sapling justice withstand the test of bail law?

The law permits Courts to take a liberal approach in the case of suspension of a fixed-term sentence as has been reiterated recently by the Supreme Court. This was clarified way back in 1999 in Bhagwan Rama Shinde Gosai and Others v. State of Gujarat(1999). However, the same or similar standards are not applied for life sentences, which are imposed in heinous offences. In any case, the statutory requirement as stated in Section 389 CrPC itself states that the Court must accord reasons in writing for the suspension of sentence.

Moreover, Courts have observed that, in iconvictions under Section 302 IPC, only in exceptional cases, the benefit of suspension of sentence can be extended. In Vijay Kumar v. Narendra (2002), the Court observed that under Section 302IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted after considering relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.

As per Kishori Lal v. Rupa(2004), the Court indicated the factors that need to be considered by the Courts while granting benefit under Section 389CrPC in cases involving serious offences like murder, etc. It said that the Appellant Court must record reasons in writing for ordering suspension of execution of the sentence or order appealed against. The requirement of recording reasons in writing must clearly indicate that there has to be careful consideration of the relevant aspects, and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. The Appellate Court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of the sentence and grant of bail. Considerations like the fact that the accused persons were on bail and did not misuse their liberty during the trial are not of much significance.

In life imprisonment, the High Court should examine whether the material on record is sufficiently strong to prima facie suggest the likelihood of the convict's acquittal. In Omprakash Sahni v. Jai Shankar Chaudhary and Another(2023), the Supreme Court, while considering the scope of Section 389 in life imprisonment, clarified that the theory of criminal jurisprudence is that the accused is presumed to be innocent is till he is convicted. Once the accused is found guilty, the presumption of innocence is erased.

That is why there happens to be a fine distinction between bail pre- and post-conviction, and in order for the suspension of sentence and for the grant of bail, the Courts must look to see if there is something "palpable", apparent or gross on the face of it that he stands a fair chance of acquittal. The same has been reiterated by the Court again and again.

Rakhi for redemption: How judicial populism is affecting bail law

Notably, the basis for imposing community service or social contribution, etc, as a condition of bail or punishment can neither be found in the CrPC nor the IPC. It is only the Bhartiya Nyaya Sanhita, 2023, which has introduced community service as one form of 'punishment' for minor/petty offences.

But Courts increasingly impose such conditions in the exercise of their inherent powers.

While these conditions can be in 'addition' to the regular bail conditions(to cooperate with the investigation, not tamper with evidence, regular attendance at police station, surrender passport, travel restrictions) in a case decided on merits, in the recent past, Courts have been skipping mentioning the merits of the case.

Notably, the Madhya Pradesh High Court has been at the forefront of imposing such conditions.

In Sunita Gandharva v. State of MP & Anr(2020), the Madhya High Court had cautioned, "Bail conditions cannot be excessive, freakish and onerous and it does not amount to buying the bail. When a case is made out for bail and when if the accused volunteers on his own volition and he himself intends to perform community service; then only this condition can be of some help."

However, the same High Court granted bail to a person, apprehended for outraging the modesty of a woman, on condition that he visits the house of the complainant and requests her to tie the Rakhi band to him "with the promise to protect her to the best of his ability for all times to come”?

This order was set aside by the Supreme Court, which had to clarify that it is wholly unacceptable to dilute the offence of sexual harassment by imposing such conditions. It had to issue guidelines, including that Courts should desist from expressing a stereotypical opinion.

In another bizarre case, the Madhya Pradesh High Court in 2024 granted bail to a man accused of shouting 'Pakistan Zindabad Hindustan Murdabad' slogan on the condition that he shall salute the National Flag 21 times, twice a month, while raising the slogan "Bharat Mata ki Jai". In another case, the Madhya Pradesh High Court directed two accused persons involved in an attempt to murder case to install a coloured LED TV at a local District Hospital, manufactured anywhere but in China, as a precondition for bail.

Such bail conditions are not only restricted to the Madhya Pradesh High Court. In 2024, the Patna High Court granted bail to an accused on condition that the victim of the offence shall stand as his surety. This was later stayed by the Supreme Court.

In December 2022, the Allahabad High Court granted bail to a man, booked under the Uttar Pradesh Prevention of Cow Slaughter Act, 1955, on the condition that he shall deposit Rs.10,000/- in the account of Gau Seva Aayog within a period of one month from his release. In another case under the 1955 Act, the Allahabad High Court granted bail to a man on the condition that he shall serve the cows for a period of one month in Gaushala after his release from jail.

In 2019, a Ranchi Court directed a woman, released on bail and who was accused of hurting religious sentiments through a Facebook post, to distribute five copies of the Quran to get bail in order to “neutralise” the situation. The same was later withdrawn.

In Sunita Gandharva, the High Court had also said that it should be the accused who must volunteer to undertake social service. But can parties seek and the Court accept such volunteering in case of heinous offences like rape and murder?

In the case where the sentence was suspended on the ground of planting tree saplings, the convicts had submitted that they have a good case on merits and they would be willing to voluntarily undertake to perform community services to "purge" their misdeeds, if any and to serve national/environmental/social cause.

In most of such orders passed by the Madhya Pradesh High Court, they have mentioned the same wording that sapling plantation is directed with the view to test "the idea of violence and evil" and to "establish harmony through creation and oneness with nature". It reasons: "At present, there is a need to cultivate the nature of kindness, service, love, and compassion as essential parts of human existence, as these are fundamental instincts of human life and their revival is essential for the survival of human existence. The effort is not just a question of planting tree but of germinating an idea."

But can their “misdeeds” of murdering someone, which have been proved through evidence, be “cleansed” by such a so-called "reformative" act of service? What happens to the family members of the victims and those left behind if the redemption of such a serious crime comes at such a low cost?

The absurdity of the present order is that in a five-page order, the High Court dedicated two and a half pages just to observe how and what kind of sapling should be planted. It says, each convict must plant 10 saplings- either fruit-bearing or neem/peepal. Further, they should make all arrangements for the protection of the trees and also for their nourishment.

The High Court took painstaking efforts to also specify how deep the pit should be for the saplings so that they mature quickly, and also suggested that if convicts want to install fences surrounding it. To ensure compliance, the High Court directed the convicts to submit photographs to the Trial Court, which must monitor the progress of the saplings.

"To ensure compliance, the applicant will be required to submit all photographs of the trees/plants planted to the concerned Trial Court within 30 days from the date of release. Thereafter, a progress report will be submitted by the applicant to the Trial Court every three months until the conclusion of the trial. It is the duty of the Trial Court to monitor the progress of the trees, as human existence is at stake due to environmental degradation and the court cannot ignore any negligence shown by the applicant regarding compliance...Any lapse on the part of the applicants in planting trees or in taking care of the trees may debar the applicant from availing the benefit of the bail...It is expected from appellants, that they shall submit photographs by downloading the mobile application (NISARG App) prepared at the instance of the High Court for monitoring the plantation through satellite/geo-tagging."

Another strange thing is that mostly all orders of the High Court says: “It is made clear that this order of suspension of sentence is granted once the case is made out and thereafter, direction for plantation of saplings is given, and it is not the case where a person intends to serve a social cause can be given bail without considering the merits.”

But where is an explanation that the case is made out on merits? Can Courts now skip mentioning how the case is made out on merits and let the parties assume that it is?

In a cheating case, last year, the Madhya Pradesh High Court granted bail to the Branch Manager (Sales) by simply noting that the applicant was an agent only and the Company had tried to cheat the complainant without assigning reasons for this observation. It then imposed saplings of ten 'fruit-bearing trees' or 'neem/pipal trees' as one of the conditions for the grant of anticipatory bail.

Similarly, in an order passed in 2023, the High Court, without commenting on the merits, granted bail to an accused in a murder case and accepted his suggestion for volunteering. The order does not assign any reasons but simply imposed regular bail conditions and including that he must plant saplings. Even under Section 439 CrPC, the Courts have to consider relevant factors and it can't be a cryptic, unreasoned order.

Even other High Courts, such as Orissa, have passed such orders. In 2024, the Orissa High Court granted bail/interim bail to three different persons, in three different cases, accused of committing rape of a minor girl belonging to SC/ST category, murder and abetment to suicide of a minor, respectively. The High Court does not assign reasons but simply says without going into the merits of the case. It directs the accused persons to plant 200 trees like mango, tamarind etc. Over 70 such bail orders have been passed where the key condition imposed is plantation of sampling in cases involving heinous offences like murder, rape, NDPS etc.

In most such cases, the High Courts write "considering the facts and submissions made,” but do not articulate those factors, and there is no analysis of relevant factors like the gravity of offence, etc. Standard bail conditions do remain in place, but are these reasoned orders?

Conclusion

While courts may encourage acts of social responsibility in keeping with the reformative theory of criminal law, such measures cannot serve as substitutes for the punishment imposed under the traditional retributive framework.

Judicial populism cannot justify replacing penal consequences with community service or social work, especially in cases involving serious offences. It would be abhorrent if High Courts were to overlook whether bail or suspension of sentence is granted on merits, and instead proceed on the assumption that the accused or convict merely deserves a chance to reform and contribute to society — without due regard to the gravity of the offence, the antecedents of the offender, and other relevant considerations.

PS: Two wrongs don't make a right

Surprisingly, the Supreme Court, despite taking exception to the absurdity of the High Court's order, allowed the suspension of the bail to continue till the matter was decided afresh by the High Court. The Supreme Court observed: "Having regard to the fact that by virtue of the impugned order, the respondents were granted bail, it is made clear that they shall not be taken into custody till the two interlocutory applications, filed for suspension of sentence and for grant of bail, are disposed of, which we hope and trust the High Court will dispose of expediously and prefer only within the period of six weeks."

If planting saplings can't justify granting bail, how can it justify continuing bail?

The author is a Principal Correspondent, Supreme Court, at LiveLaw. She can be reached at: [email protected]