Source: Bombay High Court 

Why in News? 

A bench of Justice Urmila Joshi Phalke held that a pregnant woman should be released on bail.              

• The Bombay High Court held this in the case of Surbhi d/o Raju Soni v. State of Maharashtra, through PSO Railway Police Station, Gondia, District Gondia. 

What was the Background of Surbhi d/o Raju Soni v. State of Maharashtra, through PSO Railway Police Station, Gondia, District Gondia Case?  

• The crime was registered and a raid was conducted where contraband was recovered from five persons including the applicant. 
• It was the case that the applicant and her husband along with the co-accused were carrying commercial quantity of “Ganja” worth Rs. 6,64,020. 
• A search was conducted and samples were obtained in the presence of Panchas. 
• At the time of her arrest the applicant was two months pregnant and now she is carrying an advanced pregnancy and hence she seeks regular bail for offences under Section 20 (b) (ii), 29 and 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 

What were the Court’s Observations?

• The Court observed that it is well settled that the applicant and her husband were in possession of contraband along with other co-accused. 
• It was further observed that as the applicant was carrying was carrying pregnancy on the date of arrest and, now, is carrying an advanced pregnancy, there is an apprehension of complications during delivery of child. 
• It was held that delivering child during pregnancy in jail atmosphere would certainly impact not only on the applicant but also on child, which cannot be lost sight of. 
• Delivering child in prison may have consequence on mother as well as child and, therefore, humane considerations are required. 
• Thus, the Court held that in the present facts the application to release the applicant on temporary bail deserves to be considered on humanitarian grounds.

Which Provisions of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) Govern Bail? 

• The BNSS provides for provisions of bail under Chapter XXXV.

• Section 478 provides for the following: 
  • A person (not accused of a non-bailable offense) who is arrested or detained can be released on bail if they are willing to provide bail. 
  •  If the person cannot afford a surety (guarantor for bail), the officer or Court must release them on their personal bond (a promise to appear in court). 
  • If someone cannot provide a bail bond within a week of their arrest, it is assumed they are indigent (unable to afford it). 
  • These provisions do not affect specific other legal sections (e.g., sub-section (3) of Section 135 or Section 492). 
  • If a person fails to follow bail conditions (like showing up in court as required), the Court may refuse to grant them bail in the future for the same case. 
  • Even if bail is refused, the Court can still enforce penalties for breaking the terms of the bail bond (under Section 491). 
• Section 480 provides for following: 
  • A person accused or suspected of committing a non-bailable offense may not be released on bail if: 
    • The offense is punishable by death or life imprisonment, and there are reasonable grounds to believe they are guilty. 
    • The offense is cognizable, and the person has prior convictions for: 
      • An offense punishable by death, life imprisonment, or imprisonment for 7 years or more. 
      • Two or more offenses punishable by imprisonment for 3–7 years. 
  • The Court may grant bail to such persons if: 
    • They are a child, a woman, or someone sick or infirm. 
    • There is another special reason that makes granting bail just and proper. 
  • A person entitled to bail cannot be refused solely because they may be required for witness identification during the investigation or for police custody beyond 15 days, provided they agree to follow the Court's directions. 
  • If the offense is punishable by death, life imprisonment, or imprisonment of 7 years or more, the Court must give the Public Prosecutor a chance to present their views before granting bail.

Is Pregnancy a Consideration While Granting Bail?

• Pregnancy is a factor which should be considered while granting bail to a woman. 
• Delivering in jail can impact the mother and child. 
• There is a need to protect the health and welfare of pregnant women and their infants. 
• Courts have considered the need to ensure that the prisoner has access to necessary medical care. 
• Courts have considered the need to ensure that the prisoner can maintain her physical and mental well being. 
• Courts have considered the need to ensure that the prisoner can provide a nurturing environment for her newborn.

What are Important Case Laws on Bail During Pregnancy? 

• R.D. Upadhya v. State of A.P. and Ors (2007): 
  • The Court laid down the following in this case: 
    • Temporary Release for Expectant Prisoners: 
      • Pregnant prisoners should be temporarily released (on parole or suspended sentence) to give birth outside prison if they have a suitable option. 
      • This facility can be denied only in exceptional cases, like high-security risks or similarly grave situations. 
    • Birth Registration: 
      • Births occurring in prison must be registered at the local birth registration office. 
      • The birth certificate should not mention the prison; only the general locality's address should be recorded. 
    • Naming Rites for Children: 
      • Where possible, facilities for conducting naming ceremonies for children born in prison should be excluded.