Community service can be imposed as bail condition under BNSS; courts must avoid it in gender-sensitive matters: Raj HC

Jodhpur: The Rajasthan High Court has held that community service under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) can be imposed as an ancillary condition while granting bail, while also clarifying that courts must follow a strict approach and avoid community service as a bail condition in gender-sensitive matters, particularly sexual harassment cases. Justice Chandra Prakash Shrimali, while granting bail to two accused in an ATM theft case on 27 March 2026, issued extensive directions to the Chief Secretary of Rajasthan, the Director General of Police, and the Rajasthan State Legal Services Authority to build a state-wide rehabilitation and community service implementation framework.

Two separate bail applications were filed under Section 483 of the BNSS on behalf of accused Waris alias Lahaki and Usman alias Andha, arising out of FIR No. 187/2025 registered at Police Station Khunkhuna, District Didwana-Kuchaman. The accused were charged under Sections 331(4), 305(e), 318(4), 336(2), 338, 345(3) and 61(2) of the Bharatiya Nyaya Sanhita, 2023, in connection with the alleged theft of money by cutting an SBI ATM machine with a gas cutter using a stolen vehicle bearing a forged and tampered number plate. Both accused had been in custody since 9 January 2026. As both applications arose out of the same FIR, they were disposed of by a common order.

Waris had three criminal antecedents, of which one had already been disposed of and only one related to theft. Usman had two criminal cases registered against him, both under the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995 — neither of which was theft-related. No recovery remained to be effected from either accused, and the investigation had been completed.

Mr. Himanshu Soni and Mr. Rajak Khan, appearing for the accused, submitted that the accused were innocent and had been falsely implicated. It was argued that no theft had been committed by them, nor had they used a stolen vehicle with a forged number plate. There were no recoveries pending against them, and they were not charged with an offence punishable by death or life imprisonment but with one triable by a Magistrate Court. It was further submitted that Waris suffered from a serious illness with wounds on his thigh and genitals, and that both accused had been in custody since January 2026 with the trial likely to take considerable time.

The learned Public Prosecutor submitted that the accused had colluded to steal money by cutting the ATM machine with a gas cutter and had used a stolen vehicle with a forged and tampered number plate. Noting the three criminal antecedents against Waris and two against Usman, the State contended that the gravity of the offences warranted dismissal of both bail applications.

Justice Shrimali, while considering the bail applications, observed at the outset that pending criminal cases cannot by themselves be a ground to deny bail. Relying on the Supreme Court’s decision in Prabhakar Tewari v. State of Uttar Pradesh (AIRONLINE 2020 SC 96), the Court noted: “If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused.”

The Court then devoted a substantial portion of its order to the evolving concept of community service under the BNSS, situating it within the broader constitutional framework of reformative justice. The Court observed that India’s criminal jurisprudence had gradually moved from a purely deterrent and retributive model toward a reformative theory of punishment, and that the newly enacted criminal laws — designed to provide “Nyaya” and not merely “Dand” — had introduced community service as an embodiment of this philosophy.

On the definition and scope of community service, the Court referred to Section 23 of the BNSS, which defines it as “the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.” The Court clarified: “while awarding the condition of community service as an alternate to the punishment, the courts must bear in mind that the offender/accused shall not be entitled to any remuneration and neither the court should award the same, because community services are kind of a punishment and not employment.”

The Court noted that the BNSS has specifically introduced community service as a form of punishment for six offences: Section 202 (public servant unlawfully engaging in trade), Section 209 (non-appearance in response to a proclamation), Section 226 (attempt to commit suicide to compel exercise of lawful power), the proviso to Section 303(2) (theft of property valued below Rs 5,000 by a first-time offender who returns the property), Section 355 (misconduct by a drunken person in public), and Section 356(2) (defamation). The Court further noted that community service can also be imposed as a condition of bail — in addition to, not instead of, the standard bail conditions — particularly in cases involving minor offences.

Referring to precedents from the Delhi High Court in Saurav Porwal & Anr. v. The State & Anr. (2024 LiveLaw (Del) 843) and the Bombay High Court in Sabyasachi Devpriya Nishank v. State of Maharashtra (2025 SCC OnLine Bom 143), the Court noted that community service as a bail condition had been recognised by multiple courts across India.

However, the Court sounded a clear note of caution on gender-sensitive matters. Drawing from the Supreme Court’s decisions in Aparna Bhat & Ors. v. State of Madhya Pradesh & Ors. (MANU/SC/0193/2021) and XYZ & Ors. v. State of M.P. & Anr. [(2021) 16 SCC 179], the Court held: “in the gender sensitive matters especially the sexual harassment cases, the courts should follow a considerable strict approach and should also avoid from tendering the community services as a condition of bail.” The Court also reiterated that bail conditions must have a nexus with the “good administration of justice” or “advancing the trial process,” in terms of the Supreme Court’s ruling in Kunal Kumar Tiwari v. State of Bihar & Anr. [(2018) 16 SCC 74].

Finding that no concrete or structured action plan existed for identifying the underlying causes of criminal behaviour and facilitating rehabilitation, the Court issued a series of systemic directions. The Chief Secretary, Government of Rajasthan, was directed to issue administrative orders and evolve an action plan for identifying the causes of criminal behaviour, addressing those causes, and facilitating rehabilitation of offenders to prevent recidivism. The Chief Secretary, together with the Director General of Police, Inspector General of Police and Superintendents of Police, was further directed to frame a uniform Standard Operating Procedure applicable across the State, and to designate a nodal officer in each district, not below the rank of Superintendent of Police, for supervising community service orders.

The DGP was directed to issue appropriate orders to all Station House Officers and Investigating Officers across the State to submit a detailed report to the concerned Magistrate in each case, assessing the probable reasons and circumstances leading to the commission of the offence — including economic hardship, social pressure, addiction, or lack of education — as well as the personal, familial, and socio-economic background of the accused. The Court clarified that such reports would be purely preliminary in nature and would not amount to a determination of guilt or prejudice the trial in any manner.

The Rajasthan State Legal Services Authority (RSLSA) was directed to formulate a scheme for rehabilitation of accused persons, particularly those involved in minor and repeat offences, including provisions for counseling, skill development, and community integration. The District Legal Services Authorities (DLSAs) were directed to ensure that rehabilitation reports submitted by SHOs and IOs were comprehensive and not merely formal, and to co-ordinate with local police and administration while maintaining a database of such cases, reviewed periodically at least once every two months.

The Court directed that a copy of the order be placed before the Acting Chief Justice of the Rajasthan High Court through the Registrar General, with a request to circulate it among all District Judges and DLSA Chairpersons for supervision and implementation of community service orders. Copies were also directed to be sent to the Chief Secretary and DGP for compliance and necessary action within three months. The matter was listed after three months for monitoring compliance.

Both bail applications were allowed. Waris alias Lahki and Usman alias Andha were directed to be enlarged on bail upon each furnishing a personal bond of Rs. 1 lakh with two sureties of Rs. 50,000 each, to the satisfaction of the trial court, with the condition of appearance on all dates of hearing. As an ancillary condition, the Court directed both accused to perform community service by planting at least five trees per day for a period of 30 days and watering those plants daily in their respective villages or towns. The community service was to commence within one week from the date of pronouncement of the order. The District Forest Officer was directed to provide the required plants free of cost daily and submit a compliance report with photographs and video proofs to the concerned police station and trial court.

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