Moti Ram & Ors Vs. State Of M.P
[1978] INSC 145 (24 August 1978)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
DESAI, D.A.
CITATION: 1978 AIR 1594 1979 SCR (1) 335 1978
SCC (4) 47
CITATOR INFO :
R 1978 SC1601 (7) R 1979 SC1360 (8) R 1979
SC1719 (2) D 1989 SC1841 (5)
ACT:
Bail jurisprudence-Enlargement on bail with
or without sureties-Scope of Ss. 440(1), 441, 445 read with s. 389(1) of the
Code of Criminal Procedure, 1973 -Criteria to guide in quantifying the amount
of bail and acceptance of surety whose estate is situate in a different
district or State, explained.
HEADNOTE:
Pursuant to the directions of the Supreme
Court for releasing the petitioner-appellant "on hail to the satisfaction
of the Chief Judicial Magistrate," the Magistrate ordered that a surety in
a sum of Rs. 10,000/- be produced. When the petitioner produced one. the
magistrate made an odd order refusing to accept the surety ship of the
petitioner's brother because he and his asset were in another district.
Frustrated by magisterial intransigence the prisoner moved, this Court again to
modify the original order "to the extent that the petitioner be released
on furnishing surety to the tune of Rs. 2,000/- or on executing a personal bond
or pass any other order or direction as this Hon'ble Court may deem fit and
proper". Directing the Magistrate to release the petitioner on his own
bond in a sum of Rs. 1,000/- the Court,
HELD: (1) Social Justice is the signature
tune of our Constitution and the littleman in peril of losing his liberty is
the consumer of social justice. And the grant of bail can be stultified or made
impossibly inconvenient and expensive if the Court is powerless to dispense
with surety or to receive an Indian bailor across the district borders as good
or the sum is so excessive that to procure a wealthy surety may be both
exasperating and expensive. The problem is plainly one of human rights,
especially freedom vis-a- vis, the lowly and necessitates the Supreme Court to
interdict judicial arbitrariness deprivatory of liberty and ensure "fair
procedure" which has a creative connotation after Maneka Gandhi [1978] 2
SCR 621. [338 C-F. 339 A-B] (2) Bail covers release on one's own bond with or
without sureties, as the legal literature, Indian and Anglo- Amemrican on bail
jurisprudence lends countenance and the need for liberal interpretation in
areas of social justice, individual freedom and indigent's rights justifies.
When sureties should be demanded and what sum should be insisted on are
dependent on variables. [344 G, 347 C] (3) A semantic smog overlays the
provisions of bail in the Code and prisoners' rights, when cast in ambiguous
language become precarious. [345 C] (a).'Bail' in s. 436 of the Criminal
Procedure Code suggests 'with or without sureties. And, 'bail bond` in s. 436(2)
covers own bond. [345 E] (b) 'Bail' in s. 437 (2) suggests release, the accent
being on undertaking to appear. when directed, not on the production of
sureties. But s. 137(2) distinguishes between bail and bond, without sureties.
[345 F-G] 336 (c) Section 445 suggests, especially read with the marginal note
that deposit of money will do duty for bond 'with or without sureties'. [345 G]
(d) Superficially viewed, s. 441 ( 1 ) uses the words 'bail' and 'own bond' as
antithetical, if the reading is liberal. Incisively understood, Section 441(1)
provides for both the bond of the accused and the undertaking of the surety
being conditioned in the manner mentioned in the sub- section. To read
"ail" as including only cases of release with sureties will stultify
the sub-section, for then, an accused released on his own bond without bail,
i.e. surety cannot be conditioned to attend at the appointed place.
Section 441(2) uses the word 'bail' to
include 'own bond' loosely as meaning one or the other or both. Moreover, an
accused, in judicial custody, actual or potential, may be released by the Court
to further the ends of justice and nothing in s 441(1) compels a contrary
meaning. S. 441(2) and (3) use the word 'bail' generically because the
expression is intended to cover bond with or without sureties; [345 H, 346 A-C]
(e) When the Court of appeal as per the import of s.
`389(1) may release a convict on his own bond
without sureties, surely, it cannot be that an under trial is worse off than a
convict or that the power of the Court to release increases when the guilt is
established. It is not the Court's status but the applicant guilt status that
is germane. That a guilty man may claim judicial liberation pro tempore without
sureties while an under trial cannot, is a reduction ad absurdum. [346 D-E] (5)
The Supreme Court's powers to enlarge a prisoner, as the wide words of order 21
Rule 27 (Supreme Court Rules 1966) show, contain no limitation based on
sureties, which means that a murderer, concurrently found to be so, may.
theoretically be released on his own bond
without sureties while a suspect, presumed to be innocent cannot be. Such a
strange anomaly could not be, even though it is true that the Supreme Court
exercises wider powers with greater circumspection. [346 F-G] (6) If sureties
are obligatory even for juveniles, females and sickly accused while they can be
dispensed with.
after being found guilty, if during the trial
when the presence to District lawyers is more necessary, an accused must buy
release only with sureties while at the appellate level, suretyship is
expendable, there is unreasonable restriction on personal liberty with
discrimination writ on the provisions. The hornet's nest of Part III need not
be provoked if the Court reads 'bail' to mean that it popularly does. and
lexically and in American Jurisprudence is stated to mean, viz. a generic
expression used to describe under release from custodia juris. [347 A-B] (7)
Art. 14 protects all Indians qua Indians, within the territory of India. Art.
350 sanctions representation to any authority, including a Court, for redress
of grievances in any language used in the Union of India. Equality before the
law implies that even a vakalat or affirmation made in and State language
according to the law in that State must be accepted everywhere in the territory
of India, same where a valid legislation to the contrary exists. Otherwise, an
Adivasi will be unfree in Free India, and likewise many other minorities. The
process of making Indians aliens in their own homeland should be inhibited.
Swaraj is made out of united stuff. The best guarantee of presence in Court is
the reach of law, not the money tag. [347 G-H, 348 A-B, D] The Court left open
to the Parliament to consider- whether in our socialist republic with social
justice as its hallmark, monetary supersti- 337 tion, not other relevant
consideration like family ties, roots in the community, membership of stable
organisations should prevail or bail bonds to ensure that the 'bailee' does not
flee justice.]
CRIMINAL APPELLATE JURISDICTION: Criminal
Misc. Petition 1649 of 1978. Application for bail.
S. S. Khanduja for the Appellant.
I. N. Shroff and S. K. Gambhir for the
Respondent.
V. M. Tarkunde, K. T. Harinder Nath, R. K.
Jain and H.K. Puri for the Intervener The order of the Court was delivered by
KRISHNA IYER, J.-'The law. in its majestic equality, forbids the rich as well
as the poor to sleep under bridges, to beg in the streets, and to steal
bread", lampooned Anatole France. The reality of this caricature of equal
justice under the law, whereby the poor are priced out of their liberty in the
justice market, is the grievance of the petitioner. His criminal appeal pends
in this Court and he has obtained an order for bail in his favour "to the
satisfaction of the Chief Judicial Magistrate". The direction of this
Court did not spell out the details of the bail, and so, the magistrate ordered
that a surety hl a sum of Rs. 10,000/- be produced which, in actual impact, was
a double denial of the bail benefit. For one thing the miserable mason. the
petitioner before us, could not afford to procure that huge sum or manage a
surety of sufficient prosperity. Affluents do not befriend indigents. For
another, the magistrate made an odd order refusing to accept the surety ship of
the petitioner's brother because he and his assets were in another district.
If mason and millionaire were treated alike,
egregious inegality is an inevitability. Likewise, geographic allergy at the
judicial level makes mockery of equal protection of the laws within the
territory of India. India is one and not a conglomeration of districts,
untouchably apart.
When this Court's order for release was thus
frustrated by magisterial intransigence the prisoner moved this Court again to
modify the original order "to the extent that petitioner be released 338
on furnishing surety to the tune of Rs. 2,000/- or on executing a personal bond
or pass any other order or direction as this Hon'ble Court may deem fit and
proper".
From this factual matrix three legal issues
arise ( 1 ) Can the Court, under the Code of Criminal Procedure, enlarge, on
his own bond without sureties, a person undergoing incarceration for a
non-bailable offence either as under trial or as convict who has appealed or
sought special leave ? (2) If the Court decides to grant bail with sureties,
what criteria should guide it in quantifying the amount of bail, and (3) Is it
within the power of The court to reject a surety because he or his estate is
situate in a different district or State ? This formulation turns the focus on
an aspect of liberty bearing on bail jurisprudence. The victims, when surety ship
is insisted on or heavy sums are demanded by way of bail or local bailors alone
are persona grata, may well be the weaker segments of society like the
proletariat, the linguistic and other minorities and distant denizens from the
far corners or our country with its vast diversity. In fact the grant of bail
can be stultified or made impossibly inconvenient and expensive if the court is
powerless to dispense with surety or to receive an Indian bailor across the
district borders as good or the sum is so excessive that to procure a wealthy
surety may be both exasperating and expensive. The problem is plainly one of
the human rights, especially freedom vis-a-vis the lowly. This poignant import
of the problem persuaded the Chamber Judge to invite the Supreme Court Bar
Association and the Citizens for Democracy to assist the Court in decoding the
Code and its provisions regarding bail. The Kerala State Bar Federation was
permitted to intervene and counsel for the parties also made submissions. We
record our appreciation of the amici curiae for their services and proceed to
discuss the triple issues formulated above.
There is already a direction for grant of
bail by this Court in favour of the petitioner and so the merits of that matter
do not have to be examined now. It is a sombre reflection that many little
Indians are forced into long cellular servitude for little offences because
trials never conclude and bailors are beyond their meagre means. The new
awareness about human rights imparts to what might appear to be a small concern
relating to small men a deeper meaning.
That is why we have decided to examine the
question from a wider perspective bearing in mind prisoner's rights in an *
Justice V. R. Krishna Iyer.
339 international setting and informing
ourselves of the historical origins and contemporary trends in this branch of
law. Social Justice is the signature tune of our Constitution and the little
man in peril of losing his liberty is the consumer of Social Justice.
There is no definition of bail in the Code
although offences are classified as bailable and non-bailable. The actual
Sections which deal with bail, as we will presently show, are of blurred
semantics. We have to interdict judicial arbitrariness deprivatory of liberty
and ensure 'fair procedure' which has a creative connotation after Maneka
Gandhi. (1) Before we turn to the provisions of the Code and dwell on the text
of the Sections we may as well remember what Justice Frankfurter said:
"there is no surer way to misread a
document than to read it literally."2 Speaking generally, we agree with
the annotation of the expression 'bail' given in the American Jurisprudence
(2nd Edn. Vol. 8, Art. 2, p. 783):
"The term 'bail bond' and 'recognizance'
are used inter changeably in many bail statutes, and quite generally without
distinction by the courts, and are given a practically identical effect."
According to the American Jurisprudence, Art. 6, p. 785, there is power in the
court to release the defendant without bail or on his own recognizance.
Likewise, the definition of bail as given in Webster's Third New International
Dictionary:
"The process by which a person is
released from custody." The concept of bail has a long history briefly set
out in the publication on 'Programme in Criminal Justice Reform':
"The concept of bail has a long history
and deep roots in English and American law. In medieval England, the custom
grew out of the need to free untried prisoners from disease-ridden jails while
they were waiting for the delayed trials conducted by travelling justices.
Prisoners were bailed, or 'delivered, to reputable third parties of (l) [1978]
2 S.C.R. 621 [1978] 1 S C.C. 248.
(2) Massachusetts B. and Insurance Co. v. U
S, 352 U.S. 128 138.
340 their own choosing who accepted
responsibility for assuring their appearance at trial. If the accused did not
appeal, his bailor would stand trial in his place.
Eventually it became the practice for
property owners who accepted responsibility for accused persons to forfeit
money when their charges failed to appear for trial. From this grew the modern
practice of posting a money bond through a commercial bondsman who receives a
cash premium for his service, and usually demands some col lateral as well. In
the event of non- appearance the bond is forfeited, after a grace period of a
number of days during which the bondsman may produce the accused h
court."(1) It sounds like a culture of bonded labour, and yet are we to
cling to it ! of course, in the United States, since then, the bondsman emerged
as a commercial adjunct to the processes of criminal justice, which, in turn,
bred abuses and led to reform movements like the Manhattan Bail Project.
This research project spurred the National
Bail Conference, held in 1964, which in its crucial chain reaction provided the
major impetus to a reform of bail law across the United States. The seminal
statutory outcome of this trend was the enactment of the Bail Reform Act of
1966 signed into law by President Lyndon B. Johnson. It is noteworthy that
Chief Justice Earl Warren, Attorney General Robert Kennedy and other legal
luminaries shared the view that bail reform was necessary. Indeed, this
legislative scenario has a lesson for India where a much later Criminal
Procedure Code 1973 has largely left untouched ancient provisions on this
subject, incongruous with the Preamble to the Constitution.
An aside. Hopefully, one wishes that
socio-legal research projects in India were started to examine our current bail
system. Are researchers and jurists speechless on such issues because pundits
regard these small men's causes not worthwhile ? Is the art of academic
monitoring of legislative performance irrelevant for India ? The American Act
of 1966 has stipulated, inter alia, that release should be granted in
non-capital cases where there is reasonable assurance that the individual will
reappear when required; that the Courts should make use of a variety of release
options depending on the circumstances;
that information should be developed about
the individual on which intelligent selection, of alternatives should be based.
(1) Vera Institute of Justice Ten-year Error
1961-71 r. 20.
341 The Manhattan Bail Project, conducted by
the Vera Foundation and the Institute of Judicial Administration at New York
University School of Law, found that about sixty- five percent of all felony
defendants interviewed could be recommended for release without bail. Of 2.195
defendants released in this way less than one percent failed to appear when
required. In short, risk of financial loss is all insubstantial deterrent to
flight for a large number of defendants whose ties with the community are
sufficient to bring them to court.
The consequences of pre-trial detention are
grave.
Defendants presumed innocent are subjected to
the psychological and physical deprivations of jail life, usually under more
onerous conditions than are imposed on convicted defendants. The jailed
defendant loses his job is he has one and is prevented from contributing to the
preparation of his defence. Equally important, the burden of his detention
frequently falls heavily on the innocent members of his family.
It is interesting that American
criminological thinking and research had legislative response and the Bail
Reforms Act, 1966 came into being. The then President, Lyndon B. Johnson made
certain observations at the signing ceremony:
"Today, we join to recognize a major
development in our system of criminal justice: the reform of the bail system.
This system has endued-archaic, unjust and
virtually unexamined-since the Judiciary Act of 1789.
The principal purpose of bail is to insure
that an accused person will return for trial if he is released after arrest.
How is that purpose met under the present system?
The defendant with means can afford to pay bail. He can afford to buy his
freedom. But the poorer defendant cannot pay the price He languishes in jail
weeks, months and perhaps even years before trial.
He does not stay in jail because he is
guilty.
He does not stay in jail because any sentence
has been passed.
He does not stay in jail because he is any
More likely to flee before trial.
He stays in jail for one reason only-because
he is poor...." (emphasis added) 342 Coming to studies made in India by
knowledgeable Committees we find the same connotation of bail as including
release on one's own bond being treated as implicit in the provisions of the
Code of Criminal Procedure. The Gujarat Committee from which we quote
extensively, dealt with this matter in depth:
"The bail system, as we see it
administered in the criminal courts to-day, is extremely unsatisfactory and
needs drastic change. In the first place it is virtually in possible to
translate risk of non- appearance by the accused into precise monetary terms
and even its basic premise that risk of financial loss is necessary to prevent
the accused from fleeing is of doubtful validity. There are several
considerations which deter an accused from running away from justice and risk
of financial loss is only one of them and that too not a major one. The
experience of enlightened Bail Projects in the United States such as Manhattan
Bail Project and D. C. Bail Project shows that even without monetary bail it
has been possible to secure the presence of the accused at the trial in quite a
large number of cases. Moreover, the bail system causes discrimination against
the poor since the poor would not be able to furnish bail on account of their
poverty while the wealthier persons otherwise similarly situate would be able
to secure their freedom because they can afford to furnish bail. This
discrimination arises even if the amount of the bail fixed by the Magistrate is
not high, for a large majority of those who are brought before the Courts in
criminal cases are so poor that they would and it difficult to furnish bail
even in a small amount." (emphasis added) The vice of the system is
brought out in the Report:
"The evil of the bail system is that
either the poor accused has to fall back on touts and professional sureties for
providing bail or suffer pre-trial detention. Both these consequences are
fraught with great hardship to the poor. In one case the poor accused is
fleeced of his moneys by touts and professional sureties and sometimes has even
to incur debts to make payment to them for securing his release;
in the other he is deprived of his liberty
without trial and conviction and this leads to grave consequences, namely: (1)
though presumed innocent he is subjected to 343 the psychological and physical
deprivations of jail life; (2) he loses his job, if he has one, and is deprived
of an opportunity to work to support himself and his family with the result
that burden of his detention falls heavily on the innocent members of the
family, (3) he is prevented from contribution to the preparation of his
defence; and (4) the public exchequer has to bear the cost of maintaining him
in the jail.(1) The Encyclopaedia Britannica brings out the same point even in
more affluent societies:
"bail, procedure by which a judge or
magistrate sets at liberty one who has been arrested or imprisoned, upon
receipt of security to ensure the released prisoner's later appearance in court
for further proceedings .. Failure to consider financial ability has generated
much controversy in recent years, for bail requirements may discriminate
against poor people and certain minority groups who are thus deprived of an
equal opportunity to secure their freedom pending trial. Some courts now give
special consideration to indigent accused persons who, because of their
community standing and past history, are considered likely to appear in
court."(') "We should suggest that the Magistrate must always bear in
mind that monetary bail is not a necessary element of the Criminal process and
even if risk of monetary loss is a deterrent against fleeing from justice, it
is not the only deterrent and there are other factors which are sufficient
deterrents against flight. The Magistrate must abandon the antiquated concept
under which pre-trial release could be ordered only against monetary bail. That
concept is out-dated and experience has shown that it has done more harm than
good. The new insight into the subject of pre-trial release which has now been
developed in socially advanced countries and particularly the United State
should now inform the decisions of the Magistrates in regard to pre-trial
release. Every other feasible method of (1) Report of the Legal Aid Committee
appointee. by the Govt. Of Gujarat 1971, and headed by the then Chief Justice
of the State, Mr. Justice P.N. Bhagwati p 185.
(2) Encyclopaedia. Britannica, Vol. I, P. 736
(15th Edn) Micro edn. 344 pre-trial release should be exhausted before
resorting to monetary bail. The practice which is now being followed in the
United States is that the accused should ordinarily be released on order to
appear or on his own recognizance unless it is shown that there is substantial
risk it is appearance or there are circumstances justifying imposition of
conditions on release .. If a Magistrate is Satisfied after making an enquiry
into the condition and background of the accused that the accused has his roots
in the community and is not likely to abscond, he can safely release the
accused on order to appear or on his own recognizance ......"(1) (emphasis
added) A latter Committee with Judges, lawyers, members of Parliament and other
legal experts. came to the same conclusion and proceeded on the assumption that
release on bail included release on the accused's own bond:
" .... We think that a liberal policy of
conditional re lease without monetary sureties or financial security and
release on one's own recognizance with punishment provided for violation will
go a long way to reform the bail system and help the weaker and poorer sections
of the community to get equal justice under law. Conditional release may take
the form of entrusting the accused to the care his relatives or releasing him
on supervision. The court or the authority granting bail may have to use the
discretion judiciously. When the accused is too poor to find sureties, there
will be no point in insisting on his furnishing bail with sureties, as it will
only compel him to be in custody with the consequent handicaps in making his defence."(2)
Thus, the legal literature, Indian and Anglo-American, on bail jurisprudence
lends countenance to the contention that bait. loosely used, is comprehensive
enough to cover release on ones own bond with or without sureties.
We have explained later that the power of the
Supreme Court to enlarge a person during the pendency of a Special Leave
Petition or of an appeal is very wide, as order 21 Rule 27 of the Supreme Court
Rules discloses. In that sense, a consideration of the question (1) Report of the
Legal Aid Committee appointed by the Govt. Of Gujarat 1971. P. 185.
(2) Report of the Expert Committee on Legal
Aid-Procession Justice to the People, May 1973.
345 as to whether the High Court or the
subordinate courts have powers to enlarge a person on his own bond without
sureties may not strictly arise. Even so, the guidelines which prevail with the
Supreme court when granting suspension of sentence must, in a broad sense, have
relevance to what the Code indicates except where special circumstances call
for a different course. Moreover, the advocates who participated- many of them
did-covered the wider area of release under the Code, whether with or without
sureties, and that is why we consider the relevant provisions of the Code in
some detail.
Let us now examine whether there is anything
in the Provisions of the Code which make this meaning clearly untenable.
A semantic smog overlays the provisions of
bail in the Code and prisoners' rights, when cast in ambiguous language become
precarious. Where doubts arise the Gandhian talisman becomes a tool of
interpretation: "Whenever you are in doubt.... apply the following test.
Recall the face of the poorest and the weakest man whom you may have seen, and
ask yourself, if the step you contemplate is going to be of any use of
him." Law, at the service of life, must respond interpretatively to raw
realities and make for liberties.
Primarily Chapter XXXIII is the nidus of the
law of bail. Sec. 436 of the Code speaks of bail but the proviso makes a
contradistinction between 'bail' and 'own bond without sureties'. Even here
there is an ambiguity, because even the proviso comes in only if, as indicated
in the substantive part, the accused in a bailable offence is prepared to give
bail'. Here, 'bail' suggests 'with or without sureties'. And, 'bail bond' in
Sec. 436(2) covers own bond. Sec. 437(2) blandly speaks of bail but speaks of
release on bail of persons below 16 years o age, sick or infirm people and
women. It cannot be that a small boy or sinking invalid or pardanashin should
be refused release and suffer stress and distress in prison unless sureties are
haled into a far-off court with obligation for frequent appearance! 'Bail'
there suggests release, the accent being on undertaking to appear when
directed, not on the production of sure- ties. But Sec. 437(2) distinguishes
between bail and bond without sureties.
Sec. 445 suggests, especially read with the
marginal note that deposit of money will do duty for bond 'with or without
sureties. Sec. 441(1) of the Code may appear to be a stumbling block in the way
of the liberal interpretation of bail as covering own bond with and without
sureties.
Superficially viewed, it uses the words
'bail' and 'own bond' as antithetical, if the reading is literal. Incisively 346
understood, Sec. 441(1) provides for both the bond of the accused and the
undertaking of the surety being conditioned in the manner mentioned in the
sub-section. To read 'bail' as including only cases of release with sureties
will stultify the sub-section; for then, an accused released on his own bond
without bail, i.e., surety, cannot be conditioned to attend at the appointed
place. Sec. 441(2) uses the word 'bail' to include 'own bond' loosely as
meaning one or the other or both. Moreover, an accused in judicial custody,
actual or potential, may be released by the court to further the ends of
justice and nothing in Sec. 44 1( 1 ) compels a contrary meaning.
Sec. 441(2) and (3) use the word 'bail'
generically because the expression is intended to cover bond with or without
sureties.
The slippery aspect is dispelled when we
understand the import of Sec. 389(1) which reads:
389 (1): Pending any appeal by a convicted
person the Appellate Court may, for reasons to be recorded by it in writing,
order that the execution of the sentence or order appealed against be suspended
and, also, if he is in confinement, that he be released on bail, or on his own
bond.
The court of appeal may release a convict on
his own bond without sureties. Surely. it cannot be that an under-trial is
worse of than a convict or that the power of the court to release increases
when the guilt is established. It is not the court's status but the applicant's
guilt status that is germane. That a guilty man may claim judicial liberation pro
tempore without sureties while an under trial cannot is a reduetio ad absurdam.
Likewise, the Supreme Court's powers to
enalage a prisoner, as the wide words of order 21 Rule 27 (Supreme Court Rules)
show, contain no limitation based on sureties.
Counsel for the State agree that this is so,
which means that a murderer, concurrently found to be so may theoretically be
released on his own bond without sure- .
ties while a suspect, presumed to be
innocent, cannot be.
Such a strange anomaly could not be, even
though it is true that the Supreme Court exercises wider powers with grater
circumspection.
The truth, perhaps, is that indecisive and
imprecise language is unwittingly used, not knowing the draftsman's golden
rule:
"In drafting it is not enough to gain a
degree of precision which a person reading in good faith can understand, but it
is necessary to attain if possible to a degree of precision which a person
reading in bad faith cannot misunderstand." (Lux Genthum Lex-Then and Now
1799-1974, p. 7) 347 If sureties are obligatory even for juveniles, females and
sickly accused while they can be dispensed with, after being found guilty if
during trial when the presence to instruct lawyers is more necessary, an
accused must buy release only with sureties while at the appellate level, surety
ship is expendable, there is unreasonable restriction on personal liberty with
discrimination writ on The, provisions. The hornet's nest of Part 111 need not
be provoked it read 'bail' to mean that it popularly docs, and lexically and in
American Jurisprudence is stated to Mean, viz., a generic expression used to
describe judicial release from Custodia. Bearing in mind the need for liberal
interpretation in areas of social justice, individual freedom and indigent's
rights, we hold that bail covers both-release on one's own bond, with or
without sureties.
When sureties should be demanded and what sum
should be insisted on are dependent on variables.
Even so, poor men-Indians in monetary terms
indigents young person’s infirm individual and women are weak categories and
courts should be liberal in releasing them on their own recognisances put
whatever reasonable condition you may.
It Shocks one conscience to ask a mason like
the petitioner to Furnish sureties for Rs. 100,000/- The magistrate must be
given the benefit of doubt for not fully appreciating that our Constitution.
enacted by 'We the People of India'' is meant for the butcher , the baker and
the candle - stick maker - shall we add , the bonded labour and pavement dweller.
To add insult to injury, the magistrate has
demanded sureties from his own district. (We assume the allegation in the
petition). What is a Malayalee, Kannadiga, Tamilian or Andhra to do if arrested
for alleged misappropriation or them or criminal trespass in Bastar , Port
Blair ,Port Blair . Pahalgaam of Chandni Chowk? He cannot have sureties owning
properties in these distant places. He may not know any one there and might
have come in a batch or to seek a job or in a morcha . Judicial disruption of Indian
unity is surest achieved buy such provincial allergies. What law prescribes
sureties from outside or non- regional linguistic, sometimes legalistic.
applications? What law prescribes the geographical discrimination implicit in
asking for sureties from the court district? This tendency takes many forms,
sometimes, geographic , sometimes linguistic, sometimes legalistic. Art 14
protects all Indians qua Indians, within the territory of India. Art 350
sanctions representation to any authority. including a court, for redress of
grievances in any language used in the Union of India . Equality before the law
implies theat even a vakalat 6-526 SCI/78 348 or affirmation made ill any State
language according to the law in that State must be accepted everywhere in the
territory of India save where a valid legislation to the contrary exists.
Otherwise, an adivasi will be unfree in Free India, and likewise many other
minorities. This divagation has become necessary to still the judicial
beginnings, and to inhibit the process of making Indians aliens in their own
homeland. Swaraj is made of united stuff.
We mandate the magistrate to release the
petitioner on his own bond in a sum of Rs. 1,000/-.
An After word We leave it to Parliament to
consider whether in our socialist republic, with social justice as its
hallmark, monetary superstition, not other relevant considerations like family
ties, roots in the community, membership of stable organizations, should
prevail for bail bonds to ensure that the 'bailee' does not flee justice. The
best guarantee of presence in court is the reach of the law, not the money tag.
A parting thought. If the indigents are not to be betrayed by the law including
bail law re-writing of many processual laws is in urgent desideratum; and the
judiciary will do well to remember that the geo-legal frontiers of the Central
Codes cannot be disfigured by cartographic dissection in the name of language
of province.
S.R. Petition allowed.
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