OVERVIEW
A live location on your mobile phone, gets you a cab and instant food/grocery delivery, among myriad other things. On occasion, a live location could also get you bail!This is seen from several recent judicial orders including some passed by the Hon’ble Delhi High Court and the Hon’ble Supreme Court as well.
However, such conditions of ‘location sharing’ may no longer hold good in view of the Hon’ble Supreme Court’s judgement dated July 8, 2024, in Frank Vitus v. Narcotics Control Bureau[1] (“Frank Vitus”),wherein the Hon’ble Court has struck down a bail condition, directing the accused to mandatorily share his live location with the law enforcement agency at all times while out on bail.
In the present article, we explore the rationale behind the Hon’ble Supreme Court nipping the imposition of such conditions of bail in the bud.
‘LOCATION SHARING’ ORDERS: A BRIEF LOOK
Prior to analysing the Hon’ble Supreme Court’s judgement in Frank Vitus, it would be pertinent to briefly refer to certain orders passed by the Hon’ble Delhi High Court, Hon’ble Punjab and Haryana High Court and the Hon’ble Supreme Court, which mandated ‘live location’ sharing as a condition for bail/ parole. From the perspective of the law enforcement agency, such a condition would help in keeping tabs on the accused out on bail. It would also (in theory) prevent the accused from flouting bail conditions, restricting ingress or egress from a specified area (particularly when coupled with direction to keep the cell phone location on at all times, as is done when the condition for location sharing is imposed).
In Shakil v State (Govt. of NCT Delhi),[2] the petitioner, who was accused of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”), had been in custody for more than 5(five) years. Vide anorder dated May 9, 2023, the Hon’ble Delhi High Court released the petitioner on bail, on conditions including the directions that “The applicant shall provide his mobile number to the Investigating Officer (IO) concerned, which shall be kept in working condition at all times. The applicant shall not switch off, or change the same without prior intimation to the IO concerned, during the period of bail” and that “The applicant shall share his live location through Google Pin location to the I.O. concerned”.
In Raja v State (Govt. of NCT Delhi),[3] the petitioner, accused of offences under 304B/ 498A/ 406/ 34 of the Indian Penal Code, 1860 (“IPC”), was released on bail on identical conditions regarding sharing live location and keeping the mobile phone in working condition at all times while out on bail. The offence in this matter pertained to the death of the petitioner’s wife. Vide its order dated May 4, 2023, the court imposed the aforesaid condition, despite noting that the only thing tying the petitioner to the crime was the statement by the deceased wife’s family members under Section 161 of the Code of Criminal Procedure, 1973 (“CrPC”), and that these witnesses have all gone back on their statements.
In Irfan v State of UT Chandigarh and Ors[4], the Hon’ble Punjab & Haryana High Court released a convict on parole for four weeks vide anorder dated April 12, 2023. The conditions inter alia included that the petitioner shall “share his live location through Google Pin location to the I.O. concerned”.
There are several other such orders, especially by the Hon’ble Delhi High Court, wherein the accused is released on bail on conditions, including the stipulation to “share his live location through Google Pin location”.
It appears that applicants seeking bail have begun to volunteer to provide a live location- perhaps to improve their chance of getting bail. Illustratively, reference can be drawn to order dated February 24, 2024, passed by the Hon’ble Delhi High Court in Nishant Jain v State (Govt of NCT Delhi)[5], wherein the petitioner sought bail and volunteered to provide his live location. Taking note thereof, the court was pleased to release the petitioner on bail on conditions including: “The applicant shall provide his mobile number to the Investigating Officer (IO) concerned, which shall be kept in working condition at all times. The applicant shall not switch off, or change the same without prior intimation to the IO concerned, during the period of bail”, and “The applicant shall keep his mobile location on and shall share his live location with the IO at all times”.
In fact, the Hon’ble Supreme Court has also passed orders wherein the accused has been released on bail on conditions including a direction to share his live location:
- Vide order dated February 27, 2024, in X v State of Karnataka[6],the appellant, accused of offences inter alia under Sections 376 (rape) and 354 (outraging modesty of woman), was released on bail on conditions including that the appellant was to “share his live location round the clock with the Investigating Officer through his mobile phone and his mobile phone must be retained with him at all times and kept active while he remains enlarged on bail”.
- Vide order dated October 12, 2023 in Mohammad Salim v State of Uttar Pradesh[7],the appellant, accused of participating in illegal religious conversions of speech and hearing impaired students, was released on bail inter alia on the condition that “While remaining enlarged on bail, the appellants shall keep their mobile phones functional 24 hours a day and they shall keep the said phones with them all through the day, so that the Investigating Officer can contact them at any given time. They shall share their mobile phone numbers with the Investigating Officer and their live location shall also be kept on, round the clock and paired with the mobile phone of the Investigating Officer”.
- Vide order dated July 4, 2023, in Abdullah Umar v State of Uttar Pradesh[8],the appellant, accused of various offences under the IPC and those pertaining to illegal religious conversions as well, was released on identical conditions including those regarding keeping his mobile phone functional at all times and sharing live location with the investigating officer.
The Frank Vitus judgement must be considered against this backdrop.
JUDGEMENT IN FRANK VITUS
The Petitioner, a Nigerian citizen accused of offences under the NDPS Act, had preferred an appeal against an order dated May 31, 2022, passed by the Hon’ble Delhi High Court wherein he had been enlarged on bail. The appeal, among other things, pertained to a direction in the high court order whereby the petitioner was directed to ‘drop a PIN’ on google maps, to “ensure that their location is available to the Investigation Officer of the case”.
In this backdrop, the Court was considering, among other things, the validity of a bail condition to share ‘live location’, which is the focus of the present article.
Since the offence is non-bailable, the court referred to Section 437 of the CrPC (“When bail may be taken in case of non-bailable offence”). The court considered the ambit of the words – such other conditions “in the interest of justice”– as used in sub-section 3 of Section 437 CrPC to analyse whether a condition of sharing live location could be imposed to grant bail. In doing so, the court, came to the following conclusions:
- Scope of the words “interest of justice” cannot be broadened.
- Conditions of bail cannot be “fanciful, arbitrary or freakish”.
- Conditions imposed must be within the four corners of Section 437(3).
- Presumption of innocent unless proved guilty is the law. Accused enjoys all constitutional rights, including rights covered under Article 21 of the Constitution of India (“Constitution”). While granting bail, freedom of accused can only be curtailed “to the extent required”.
- Conditions restraining an accused from entering an area can be imposed when need be. Condition directing an accused to keep the police informed about his movements constantly cannot be imposed.
- “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”.
- “If a constant vigil is kept on every movement of the accused released on bail by the use of technology or otherwise, it will infringe the rights of the accused guaranteed under Article 21, including the right to privacy.
- “The reason is that the effect of keeping such constant vigil on the accused by imposing drastic bail conditions will amount to keeping the accused in some kind of confinement even after he is released on bail. Such a condition cannot be a condition of bail.”
As regards the direction of dropping a ‘pin on google maps’, upon referring to an affidavit filed on behalf of Google, the Court noted that such a feature does not enable real-time tracking and is thus irrelevant as a bail condition. In any event, it was reiterated that any condition that enables continuous tracking would be in violation of the right to privacy, guaranteed under Article 21 of the Constitution.
CONCLUSION
The Frank Vitus judgement adds another layer to the ‘right to privacy’ which is subsumed within the ‘right to life’ under Article 21 of the Constitution.
One aspect, which is perhaps implicit, but not stated in the judgement, is that if bail is granted, then court does not believe the accused to be a flight risk, since one of the grounds for denying bail to an accused is flight risk. Hence, once bail is granted, the need to constantly track the accused (through live location) is obviated.
Equally important is the narrow interpretation of the words ‘interest of justice’, as used in Section 437(3) CrPC, while considering the kind of conditions that can be imposed while granting bail. As noted by the court, conditions that are ‘fanciful’ or ‘arbitrary’ or not connected to the purpose of granting bail (ensuring attendance of accused without compromising the fairness of trial or investigation), cannot be imposed under the garb of ‘interest of justice’.
Yet, from the perspective of police/ law enforcement agencies, such a condition aided in keeping tabs on the whereabouts of an accused. With such tracking no longer permissible, it is possible that enforcement agencies may seek even more stringent bail conditions, which may include increased frequency of reporting before the police.
Whether an accused can continue to volunteer to provide live location while seeking bail, and whether such a condition, imposed basis voluntary undertaking of the accused, would fall foul of the judgement in Frank Vitus, will have to be seen.
For now, however, through its Frank Vitus judgement, the Hon’ble Supreme Courthas ‘turned off’ live location for an accused out on bail.
[1] SLP (Crl.) No. 6339-6340/2023
[2] Bail Application No. 732 of 2023
[3] Bail Application No. 549 of 2023
[4] CRWP 7330 OF 2022
[5] Bail Application NO. 4063 of 2023
[6] Criminal Appeal No. 1126 of 2024
[7] Criminal Appeal No. 3174 of 2023
[8] Criminal Appeal No. 1737 of 2023