Chima Judgment
Chima Judgment
CRL.A. 1365/2019
INDEX
S.NO PARTICULARS PAGE. NO
1. In Re Policy Strategy For Grant Of Bail 2023 Scc 1-9
Online Sc 483.
2. Jerry Akubueze Awama @ Solo @ Solomon Akubueze 10-11
Nwama V/S State of Nct of Delhi Bail Application
948/2022
3. Sehnaz V/S State Bail CRL.A. 447/2020 12-13
4. State of Chhattisgarh V/s Bhavan Singh and Others 2022 14-18
SCC OnLine Chh 1020
5. Ajay Verma V/S Govt. of NCT of Delhi 2017 SCC 19-31
OnLine Del 12743
6. R.D Upadhyay V/S State of A.P and others (1996) 3 32-34
SCC 422
7. Shankara and Others V/s State ILR (1996) I Delhi 35-41
8. Moti Ram and Others V/S State of Madhya Pradesh. 42-52
(1978) 4 SCC 47
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$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 948/2022
JERRY AKUBUEZE NWAMA @ SOLO @ SOLOMON
AKUBUEZE NWAMA ..... Petitioner
Through: Mr Anoop Kumar Gupta and Ms
Gunjan Gupta, Advs.
versus
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 17.02.2023
CRL.M.A. 4459/2023
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
CRL.M.A. 4458/2023
This is an application seeking modification of the order dated
30.01.2023.
The applicant seeks modification of condition Nos. 18 (i) and 18 (iii)
of the order dated 30.01.2023.
As per condition No. 18 (i) of the said order, the applicant was
required to furnish a personal bond and two sureties in the sum of Rs. 1 lakh
each, to the satisfaction of the Trial Court. It is stated that the applicant has
been in jail for 7 years and hence, he is unable to furnish this kind of surety.
In this view of the matter, the condition No. 18 (i) is modified and the
applicant is directed to furnish personal bond to the tune of Rs. 50,000/- with
one surety of the like amount, to the satisfaction of the Trial Court.
Condition No. 18 (iii) of the order dated 30.01.2023 requires the
applicant to furnish a certificate of assurance to the satisfaction of the Trial
Court issued by the Embassy of the applicant‟s country. Condition No. 18
(iii) is modified that the applicant shall furnish certificate of assurance
within 60 days of the applicant being released from jail to the IO. In case,
the applicant has a problem in getting certificate of assurance from the
Embassy, the applicant shall file an affidavit indicating the steps taken and
the reason why the Embassy has not furnished certificate of assurance to the
applicant before the Trial Court.
All other terms and conditions of the order dated 30.01.2023 shall
remain unchanged.
The application is disposed of accordingly.
JASMEET SINGH, J
FEBRUARY 17, 2023
sr
Click here to check corrigendum, if any
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 447/2020
SEHNAZ ..... Appellant
Through: Mr. Zeeshan Diwan, Adv. DHCLSC
with Mr. Jasir Aftab, Adv.
versus
JASMEET SINGH, J
JUNE 1, 2022/dm
Click here to check corrigendum, if any
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bail.
(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."
7. A careful perusal of the provisions contained in Section 389(1) of CrPC would
show that the Legislature has consciously empowered the Appellate Court to suspend
the substantive jail sentence of a convicted person, for the reasons to be recorded in
the order, pending final disposal of the criminal appeal filed by him, and if he is in
confinement, he be released on bail or on his own bond as, such, it is absolutely
discretionary in nature and it is for the Appellate Court to decide as to whether an
accused can be released on bail or on his own bond by suspending his substantive jail
sentence.
8. The Supreme Court in the case of Moti Ram (supra) considered the issue whether
the Appellate Court is empowered to enlarge convicted accused on his own bond
without sureties and in Para-3 of the judgment their Lordships framed three questions,
out of which we are concerned here only with Questions No. (1), which states as
under:
"3 (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 undertrial or as convict who has appealed or sought special leave?
18. 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. [Encyclopaedia Britannica, Vol. I, p.736 (15th Edn) Micro
Edn.]"
18A. Again :
"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
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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 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 of non-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 "
(emphasis added)
20. Thus, the legal literature, Indian and Anglo-American, on bail jurisprudence
lends countenance to the contention that bail, loosely used, is comprehensive
enough to cover release on ones own bond with or without sureties.
27. 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 undertrial cannot is a
reduetio ad absurdam.
30. 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, 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 we 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
juris. 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.
31. Even so, poor men-Indians are, in monetary terms, indigents-young persons
infirm individuals and women are weak categories and courts should be liberal in
releasing them on their own recognisancesput whatever reasonable conditions you
may."
10. Similarly, the Supreme Court in the case of Hussainara Khatoon (supra) held
that an accused can be released on bail on his executing personal bond also. Relying
upon the decision of Moti Ram (supra), Justice R.S. Pathak, though in his separate,
but in a concurrinq opinion held in Para-8 as under:
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"8. In regard to the exercise of the judicial power to release a prisoner awaiting
trial on bail or on the execution of a personal bond without sureties for his
appearance, I have to say this briefly. There is an amplitude of power in this regard
within the existing provisions of the Code of Criminal Procedure, and it is for the
courts to fully acquaint themselves with the nature and extent of their discretion in
exercising it. I think it is no longer possible to countenance a mechanical exercise of
the power. What should be the amount of security required or the monetary
obligation demanded in a bond is a matter calling for the careful consideration of
several factors. The entire object being only to ensure that the undertrial does not
flee and hide himself from trial, all the relevant considerations which enter into the
determination of that question must be taken into account (Section 440, CrPC). A
synoptic impression of what the considerations could be may be drawn from the
following provision in the United States Bail Reform Act of 1966:
In determining which conditions of releases will reasonably assure
appearance, the judicial officer shall, on the basis of available information, take
into account the nature and circumstances of the offence charged, the weight of
the evidence against the accused, the accused's family ties, employment,
financial resources, character and mental condition, the length of his residence in
the community, his record of convictions, and his record of appearance at court
proceedings or of flight to avoid prosecution or failure to appear at court
proceedings (18 US S. 3146(b)).
These are considerations which should be kept in mind when determining the
amount of the security or monetary obligation. Perhaps, if this is done the abuses
attendant on the prevailing system of pre-trial release in India could be avoided or,
in any event, greatly reduced. See : Moti Ram v. State of M.P., (1978) 4 SCC 47."
11. Thus, in view of the provision contained in Section 389(1) of CrPC and in view
of principles of law laid down by their Lordships of the Supreme Court in Moti Ram
(supra) and Hussainara Khatoon (supra), the Appellate Court in appropriate case is
fully empowered to release the convict on personal bond taking into account the
nature and circumstance of offence charged, evidence available against the convict,
his family background and financial condition etc, to ensure his appearance in Court as
and when required.
12. Reverting to the facts of the present case in the light of principle of law laid
down by the Supreme Court in the matters of Moti Ram (supra) and Hussainara
Khatoon (supra), it is quite vivid that the appellants being poor persons belonging to
Scheduled Tribe community are in jail since 11.08.2013 and are not in contact with
their family members and, therefore, they are unable to furnish bail bonds as directed
by this Court vide order dated 29.04.2016 while granting bail to them. Accordingly, we
deem it appropriate to direct that the appellants, namely, Bhawan Singh, Jai Singh
and Sukhsen Gond be released on bail forthwith on their executing only personal
bond of Rs. 5,000/- (Rupees Five Thousand Only) and shall appear before the Registry
of this Court on 16th August, 2022. They shall thereafter appear before the concerned
trial Court on a date to be given by the Registry of this Court and shall continue to
appear there on all such subsequent dates as are given to them by the said Court,
interval being not less than 6 months, till the disposal of this appeal. It is ordered
accordingly.
13. Accordingly, IA No. 03 is allowed. Order dated 29.04.2016 stands modified to
the extent indicated above.
14. A copy of this order be communicated to the concerned jail authorities by fax/e-
mail.
15. While parting with the matter in this regard, the Member Secretary,
Chhattisgarh State Legal Services Authority and the Secretary, High Court Legal
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Services Committee are directed to collect information from all the District Legal
Services Authorities about the cases in which accused persons have been enlarged on
bail by this Court but are still in jail due to their inability to furnish bail bonds, as
everyday we are coming across the cases in which despite order of this Court granting
bail to the accused persons, they have not been released from jail and report be
submitted on or before 13.06.2022. This exercise be done within a period of four
weeks and matter be listed for consideration on 15.06.2022.
16. A copy of this order be also sent to the Member Secretary, Chhattisgarh State
Legal Services Authority; Secretary, High Court Legal Services Committee and to all
the District Legal Services Committees in the State for information and needful.
HEAD NOTE
The Appellate Court while considering an application filed under Section 389 of
Cr.P.C. for suspension of sentence and grant of bail is empowered to suspend the
substantive jail sentence of a convicted person, for the reasons to be recorded in
the order, pending final disposal of the criminal appeal filed by him, and if he is in
confinement, he be released on bail or on his own bond (personal bond).
uRrjt tii<i 389 qu-sR?! Rcwd 74 'JiHi'id
A M^d 94 97 Rxik wcl twj "WRITcRI 4} vft
RdI >J||^ I
1
CRA No. 1239 of 2019, dated 29.03.2022
2
(1978) 4 SCC 47
3
(1980) 1 SCC 81
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W.P.(C) 10689/2017
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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 sureties. But Section 437(2)
distinguishes between bail and bond without sureties.
25. Section 445 suggests, especially read with the marginal note, that deposit of
money will do duty for bond ‘with or without sureties’. Section 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
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 ‘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. 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 Section 441(1) compels a
contrary meaning.
26. Section 441(2) and (3) use the word ‘bail’ generically because the
expression is intended to cover bond with or without sureties.
27. The slippery aspect is dispelled when we understand the import of Section
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 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's guilt status that is
germane. That a guilty man may claim judicial liberation, pro tempore without
sureties while an undertrial cannot is a reductio ad absurdem.
28. Likewise, the Supreme Court's powers to enlarge 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 sureties while a suspect, presumed to be innocent, cannot. Such a
strange anomaly could not be, even though it is true that the Supreme Court
exercises wider powers with greater circumspection.
29. 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 Gentium Lex — Then and Now, 1799-1974, p. 7]”
30. 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
onlywith 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 we read ‘bail’ to
mean that it popularly does, and lexically and in American Jurisprudence is stated
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to mean viz. a generic expression used to describe judicial release from custodia
juris. Bearing in mind the need for liberal interpretation in areas of social justice,
individual freedom and indigents'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.
xxx xxx xxx
32. It shocks one's conscience to ask a mason like the petitioner to furnish
sureties for Rs. 10,000. 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 candlestick maker — shall we add, the
bonded labour and pavement dweller.
33. 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, Tamil or Telugu to do if arrested for alleged misappropriation or theft or
criminal trespass in Bastar, Port Blair, Pahalgam or 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 by such provincial allergies. What law prescribes
sureties from outside or non-regional language 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. Article 14 protects all Indians qua
Indians within the territory of India. Article 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 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.”
(Emphasis supplied)
5. After so holding, the Supreme Court directed the release of the petitioner on his
own bond in the sum of Rs. 1,000/-.
6. In a later judgment reported at (1996) 3 SCC 422, R.D. Upadhyay v. State of
Andhra Pradesh, also a writ petition filed in public interest before the Supreme Court,
the court was concerned with the aspect of speedy trials so far as criminal cases in
Delhi were concerned. In para 2 of the pronouncement, the Delhi High Court was
directed to nominate/designate Additional District Judges to take up exclusively the
trial of 880 murder cases with a direction to complete these trials within a period of six
months. For the purposes of the present consideration, it would be useful to extract
the directions of the Supreme Court made in paras 3 and 4 which read as follows:
“3. So far as the cases regarding attempt to murder are concerned, we direct
that the cases which are pending for more than 2 years, the undertrials shall be
released on bail forthwith to the satisfaction of the respective trial courts. Persons
facing trial for Kidnapping, Theft, Cheating, Arms Act, Counterfeiting, Customs,
under Section 326 IPC, under Section 324 IPC, Riots and under Section 354 IPC
who are in jail for a period of more than one year, shall be released on bail
forthwith to the satisfaction of the trial courts concerned. There may be cases
where the undertrial persons may not be in a position to furnish sureties etc. In
those cases, the trial courts may consider — keeping in view the facts of each
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case especially the period spent in jail — releasing them on bail by furnishing
personal bonds.
4. We make it clear that it shall not be necessary for any of the undertrials
to move application for bail. The court shall, suo motu, on the authority of
this Court's order, consider the bail cases. This shall be done by all the courts
concerned within two weeks of the receipt of this order. We give liberty to all
concerned to approach this Court for further directions, if necessary.”
(Emphasis supplied)
7. The importance of the rights of prisoners under Article 21 of the Constitution of
India, who have been accused of even serious crimes, cannot be overlooked under any
circumstance. It is to be noted that the Supreme Court directed that it would “not be
necessary for any of the under-trials to move applications for bail” and that “the trial
court shall, suo motu, on the authority” of the orders passed by the Supreme Court,
consider the bail cases.
8. The issue of under-trial prisoners languishing unnecessarily in jail has engaged
the attention of this court as well. In a judgment reported at ILR (1996) 1 Delhi 274,
Shankara v. State (Delhi Administration), the court had occasion to consider
categorisation of under-trial prisoners in a list submitted by the Inspector General
(Prisons) under orders of the court. The impact of unreasonable bail conditions on a
large group of under-trial prisoners was noted by the court in para 12 of the judgment
in the following terms:
“12. We have two categories of undertrial prisoners—the poor and the non-poor.
The experience has shown that a non-poor undertrial prisoners perhaps do not stay
in a jail even for a few hours after he/she is directed to be released on bail,
irrespective of the conditions attached to the bail orders. Personal bonds of several
lakhs and multiple sureties of several lakhs are furnished within hours of passing of
the release orders whereas there are also very large number of undertrial prisoners
who are compelled to languish in jail for months and years for not even able to
furnish even one surety of Rs. 500/- to Rs. 1000/-. These are clear instances of
depriving the undertrials of their freedom and liberty solely on the ground of
poverty.
xxx xxx xxx
15. Shankar's case was really an eye opener. This Court visualized that because
of the poverty, ignorance and illiteracy in our country, there may be many more
such unfortunate undertrial prisoners who may be languishing in jails despite bail
orders. In this background, this Court thought it appropriate and consequently
directed the Inspector General (Prisons), Delhi to submit a complete list of
all undertrial prisoners lodged in jails of Delhi State who could not be
released on bail despite bail orders having been passed in their favour.”
9. In paras 20 to 22 of the judgment, the court thereafter made the following
directions:
“20 I have heard Mr. R.D. Jolly and Ms. Mukta Gupta, the learned Counsel for the
State. In the interest of justice, I deem it appropriate to relaxe and reduce
the conditions attached to the bail orders. The office of the Inspector General
(Prisons) has provided two lists. The undertrial prisoners in Category ‘A’ are
facing trial for relatively minor offences. All the undertrial prisoners in this
category are released on furnishing personal bonds.
21. The Category ‘B’ reflects the cases of those undertrial prisoners who
have been charged with major offences. This Court deems it appropriate
even to vary the terms and conditions of undertrial prisoners in that
category. Therefore, all undertrial prisoners in this category are released on
furnishing a personal bond as well as one surety in the amount of Rs. 1000/-
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OnLine Del 543, D.M. Bhalla v. State, following suggestions made before the court
which were accepted, have been noted in para 4 which reads thus:
“4. However, the purported beneficiary of the bail order is often unable to
enjoy the benefit of the same as he/she is unable to meet the terms set out in
the bail order and/or is also often unaware of the procedure for
relaxation/modification of the bail terms. This inability and some reasons
therefore have been mentioned in the Rotary Club case. Therefore, it was proposed
that:
i. The Jail Paralegal Workers would gather instances and ascertain the
reasons for the inability to meet the bail conditions and furnish it to the
jail authorities and/or to the visiting lawyers of DLSA who, in turn,
would prepare an appropriate application for modification/relaxation of
the bail conditions. In cases where the undertrial-prisoner/convicted-
prisoner have their own private counsel similar/appropriate suggestions would
be offered to them by the visiting lawyers; and if so instructed the latter
would draft and file requisite applications on behalf of such prisoners also;
ii. The bail order would be communicated by the Jail Authorities to the
family of the undertrial-prisoner/convicted prisoner, with the latter's
consent, so that the family could take steps to meet the bail conditions;
iii. To facilitate the release on relaxed bail terms or personal bond or
acceptance of surety of land, the Gram Pradhan's/SDM's certificate that
the prisoner is a permanent resident of the village/subdivision or is the
owner of such and such parcel of land would suffice;
iv. The Bail Granted Register, in which the list of the bails granted by the
court concerned is maintained, would be examined by the judge
concerned to ascertain which undertrial-prisoner/convicted-prisoner
has not been released from jail. Reasons for the same would be
ascertained through video-conferencing and appropriate orders
regarding relaxation/modification of the bail terms would be passed
within ten days;
v. The bail application would be expedited and disposed off as soon as
possible regard being had to the objective of release of the prisoner
expeditiously and reasons for the delay as may be ascertained through
video conferencing with the undertrial-prisoner/convicted-prisoner;
vi. In case of non-disposal of the cases within the above proposed timeframe
the reasons for the same would be incorporated in the “Monthly
Workdone Statement/Report” sent to the Supervising Judge/High Court.”
(Emphasis supplied)
14. We find that the Law Commission of India in its 268th Report proposed
amendments to the Criminal Procedure Code, 1973 in the provisions relating to bail
practices in Chapter XI. So far as conditions that may be imposed are concerned,
keeping in view the experience in trial courts, the Law Commission of India has made
extensive recommendations in Section C of Chapter XI of the Report.
15. Mr. Ajay Verma has drawn our attention to the suggestions made by the Law
Commission regarding the assessment which is required to be undertaken with regard
to the qualitative value of risk related to a pre-trial defendant and specific
circumstances. In this regard, the following observations of the Law Commission are
being placed before us:
“11.30 Pre-trial risk assessment is the determination of qualitative value of risk
related to a pretrial defendant and his specific circumstances (C. Macmalian C.,
State of The Science of Pretrial Risk Assessment (Pretrial Justice Institute, 2011)).
Risk management means balancing the constitutional rights of the defendant with
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the risk the defendant poses, using effective supervision and strategic interventions
288. In the risk assessment process the arrested accused is brought to the station
where, after identification, booking, search, questioning, and fingerprinting,
community ties are investigated along with a set of pre-determined factors. If the
defendant is found to be a good risk, the officer is authorized to release him with on
a personal bond with or without sureties. Additionally, this procedure saves
substantial police, investigating authorities and Court time and economises the
operation of detention facilities.”
16. It is to be noted that the Supreme Court has repeatedly noted with anguish,
the aspect of under-trial prisoners being lodged in Indian prisons who were unable to
secure their release before trial because of their inability to produce sufficient financial
guarantee for their appearance. In the oft-cited decision reported at (1980) 1 SCC 81,
Hussainara Khatoon v. Home Secretary, State of Bihar, Patna this issue is noted in the
following terms:
“11. While concluding, it seems desirable to draw attention to the absence of an
explicit provision in the Code of Criminal Procedure enabling the release, in
appropriate cases, of an undertrial prisoner on his bond without sureties and
without any monetary obligation. There is urgent need for a clear provision.
Undeniably, the thousands of undertrial prisoners lodged in Indian prisons today
include many who are unable to secure their release before trial because of their
inability to produce sufficient financial guarantee for their appearance. Where that is
the only reason for their continued incarceration, there may be ground for
complaining of invidious discrimination. The more so under a constitutional system
which promises social equality and social justice to all of its citizens. The
deprivation of liberty for the reason of financial poverty only is an incongruous
element in a society aspiring to the achievement of these constitutional objectives.
There are sufficient guarantees for appearance in the host of considerations to
which reference has been made earlier and, it seems to me, our law-makers would
take an important step in defence of individual liberty if appropriate provision was
made in the statute for non-financial releases.”
17. A reasoned decision by a ld. Single Judge of the Madras High Court reported at
2017 (3) MLJ (Crl) 134, Sagayam v. State was brought to our notice. This decision was
rendered on a petition filed by the petitioner seeking modification of certain conditions
of bail imposed on the petitioner. The question which was placed for consideration
before the court was as to whether a specific circumstance or condition of surety was
mandatory in filing the surety bond. In this case, the trial court had required the
petitioner to execute a bond of Rs. 15,000/- with two sureties who shall be blood
related, each in the like amount, to the satisfaction of the court. Some of the
objections placed before the court by the petitioner would be arising in the trial courts
in Delhi as well and deserve to be noted and read as follows:
“4. The learned counsel for the petitioner also submitted that persons who were
granted bail, anticipatory bail, even statutory default bail are not in a position to
execute the bail bond and the sureties are also not in a position to execute
the surety bonds, because of certain practices being followed by the Courts. The
learned counsel also added that these practices are wide prevalent in the
criminal Courts. These practices did not have the sanction of law.
5. The learned counsel for the petitioner submitted that even for a bail bond or
surety bond for Rs. 5,000/, Rs. 10,000/-, Rs. 15,000/- Courts insists production
of property documents. Because of present property value, it is very difficult to
get property documents for such amount. Sometimes, in lieu of the same, Courts
demand production of RC books of two-wheelers, four-wheelers, etc.
xxx xxx xxx
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7. The learned counsel for the petitioner further submitted that in some cases,
Courts require ‘blood relatives’, ‘family members’, ‘Government servants’,
‘public servants’ ‘permanent employees’, ‘local residents as sureties. The
accused could not get such sureties. Consequently, it leads to many malpractices.
8. The learned counsel for the petitioner further submitted that though the
accused obtained bail order from the superior Court, yet he could not execute the
bail bond and the surety could not execute the surety bond because of the
onerous requirements insisted upon by the Courts. Those conditions could not
be complied with by the accused. Consequently, the accused are languishing in
jail.
9. The learned counsel for the petitioner further submitted that Courts are also
insisting upon production of VAO certificate, sometimes counter signed by
Tahsildar or Deputy Tahsildar, Residential/Nativity certificate, Solvency
certificate, etc.. It is a matter of common knowledge that getting these
certificates from the Revenue Department involves delay and also certain
untold miseries. Consequently, the accused and sureties could not execute the
bonds.”
(Emphasis by us)
18. Placing reliance on the protection, constitutionally granted under Article 21 of
the Constitution in India, it was urged before the learned Single Judge in the above
case, that a simple procedure not involving complications, complexities, illegalities
ensuring genuineness of bail bonds and surety bonds would be sufficient and that
imposition of such conditions was actually curbing the person's right to be released on
bail; amounts to indirect denial of bail and that the matter involved safeguarding
human rights and rights of the accused. After an elaborate discussion of the provisions
of Sections 397, 439, 482 of the CrPC as well as Sections 440 to 450 of the Cr.P.C.
dealing with furnishing of bail bonds, the observations made by the court on the
fitness of the surety as well as the conditions deserve to be extracted in extenso and
read as follows:
“66. As per section 441(4) of Cr.P.C. a surety should be a fit person. Who is a
fit person has not been defined or explained anywhere in the Code.
Generally, a surety must be a genuine person. He should not be a bogus person. A
surety comes to the Court and gives undertaking to the Court that he will ensure
the appearance of the accused. If the accused fails to appear before the Court, the
surety bond executed by the surety will be forfeited.
67. Court can ascertain the genuineness of the sureties. A surety should
have a genuine address. He may be asked to produce residential proof. He
should not be a vagabond. He should establish his identity. A poor man can
be a voter. Likewise, a poor man can be a surety. A surety can be a person
without having own house. He can be a tenant. Even a person living in a platform,
living in a slum having an acceptable address proof can also stand as a surety.
68. It cannot be denied that a bogus person should not be accepted as a
surety. A person who is offering surety must have acceptable residential proof. He
may be a tenant, licensee. A beggar can also stand as surety provided he should
have some acceptable residential proof.
69. Sometimes, one person may come forward to stand as surety for more
than one accused. For example, if two sons or two brothers stand as sureties to an
accused, his father, brother, mother, sister etc. may come forward to stand as
surety. In such circumstances, question may arise whether the father can chose any
one of his son and stand as surety and exclude his other son.
70. In this connection, Section 441-A Cr.P.C. contains guidance. It runs as
under:
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Government
28. Gas Connection Bill 30 Insurance Policy
74. From the above analysis, we come to the conclusion that when the accused
executes bail bond, when the surety executes surety bond, Court cannot insist
production of property documents, surety need not be a Government servant or a
blood relative or a local surety.
75. In view of the foregoing analysis, the following directions and orders are
issued:
(i) In para 6(4) of the anticipatory bail order, it is made clear that the word bond
means ‘personal bond’.
(ii) The word ‘blood surety’ shall be deleted.
(iii) Within 15 days from the date of receipt of a copy of this order, the petitioner
shall execute the bail bond as per the terms and conditions of this Court order
in Crl.O.P. No. 2891 of 2017, dated 21.2.2017 and as per the directions of this
order.
(iv) The amount of bail bond, surety bond shall not be excessive and it should be
reasonable.
(v) It is made clear that production of property documents or V.A.O. Certificate,
Tahsildar Certificate, Solvency Certificate, R.C. book shall not be insisted upon
from the accused or from the sureties.
(vi) Copies of anyone of the documents mentioned in para 73 in this order can be
accepted.
(vii) Sureties need not be a Government servant or a public servant or a
permanent employee or related by blood to the accused or a member of the
family but he should be a genuine person.
(viii) One person can be a surety for more than one accused.
(ix) In the first instance, cash surety cannot be insisted upon.
(x) When the accused is not in a position to produce personal surety and offers
cash surety, it can be accepted.”
(Emphasis supplied)
19. So far as the conditions made in Sagayam, amongst others, in para 75, the
learned Single Judge of the Madras High Court, inter alia, clarified as follows:
“75. In view of the foregoing analysis, the following directions and orders are
issued:
xxx xxx xxx
(vii) Sureties need not be a Government servant or a public servant or a
permanent employee or related by blood to the accused or a member of the
family but he should be a genuine person.
(viii) One person can be a surety for more than one accused.
(ix) In the first instance, cash surety cannot be insisted upon.
(x) When the accused is not in a position to produce personal surety and
offers cash surety, it can be accepted.”
20. We see no reason why these very observations would not apply to under-trials
in the courts in Delhi as well.
21. The above narration would show that so far as the jails and prisoners in Delhi
are concerned, there is a procedure and practice prescribed for jail visiting judges who
regularly visit the jails. The under-trail review committees are also in place in all the
districts in Delhi which are required to regularly review all cases of prisoners who
would be covered under Section 436A of the Cr.P.C. and submit their report. The
recommendations of these under-trial review committees are placed before the trial
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submitted by the Govt. of NCT of Delhi before us and also to undertake a review
of the pending cases to ascertain as to whether there is any other under-trial
prisoner who has been unable to secure release from prison despite an order of
bail in his/her favour.
(iii) The trial courts shall undertake the exercise of risk assessment with regard to
the persons enumerated in the list forwarded to the trial courts i.e. the District
Judges who shall submit a report to this court of the outcome of such
consideration by the trial courts within four weeks from today.
(iv) Copy of this order shall also be sent to the Directorate of Prosecution, Tis Hazari
Courts, Delhi to ensure that a copy of this order is brought to the notice of all
prosecutors and a sensitisation programme on the subject is undertaken.
(v) Copy of this order be also sent to the Director General of Prisons, Central Jail,
Tihar.
(vi) We direct the prison authorities to promptly bring in to the notice of the trial
court as well as the concerned Secretary of the District Legal Services Authority
about any incidence of a prisoner being unable to secure release from prison
despite an order of bail.
(vii) The Director General of Prisons may consider the possibility of incorporating
software which would raise a notification or an alarm in cases where under-trial
prisoners in whose cases bail orders have been passed, are still lodged in
custody, to enable action thereon.
(viii) Copy of this order shall also be brought to the notice of every judge in the
District Courts in Delhi, irrespective of whether they exercise civil or criminal
jurisdictions.
(ix) Copy of this order be also sent to the Member Secretary of the Delhi State Legal
Services Authority as well as the Secretary, Delhi High Court Legal Services
Committee to ensure sensitisation of all the legal aid lawyers on the aspect noted
by us.
(x) Copy of this order shall also be made available to the Delhi Judicial Academy to
ensure that a proper sensitisation programme of the District Judiciary on the
subject is undertaken.
29. List this matter on 31st January, 2018.
———
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Writ Petition (C) No. 559 of 1994, decided on March 19, 1996 ft. Jr
Constitution of India —
Arts. 21 & 32 — Right to speedy trial —
Undertrials languishing in Central Jail, Tihar, Delhi for a period ranging from 1
year to 11 years —
Murder cases directed to be disposed of within ^months or
so by nominating/designating ten Additional District Judges
against whom cases of attempt to: murder pending for more than 2 years
Undertrials —
directed to be released on bail forthwith to the satisfaction of trial court
Undertrials charged with offences -tinder Customs Act, Arms Act or under
e —
Ss. 326, 324, 354 IPC or of kidnapping, theft, cheating, counterfeiting, who are
in jail for more than one year directed to be released bn bail forthwith to the
satisfaction of trial court —
Trial courts may consider the cases of undertrials
who are unable to furnish sureties to release on bail by furnishing personal
bonds —
NCT, Delhi Administration may take appropriate decision in respect
of undertrials accused of the offences under NDPS,Or for rape, dacoity and f
robbery, escape, dowry and those under Sections 304 IPC, TADA, Official
Secrets Act, and Extradition Act
Case Findepftft,;,
speedy near trjal *
Search again: ft '
ftft, ft j-!
ft ;■ A undertrial* g
R M/16076/CR
ft Order
$ 1. Tfeis public interest petition under Article 32 of the Constitution of
India has been filed by Mr R.D. Upadhyay, an Advocate of this Court. It has
been highlighted in the petition that a large number of undertrial prisoners /7
have been languishing in Tihar Jail without trial for a very long period. This
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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one year, shall be released on bail forthwith to the satisfaction of the trial >
courts concerned. There may be cases where the undertrial persons may .not
be in a position to furnish sureties etc. In those cases, the trial courts- may
consider
spent in jail
——
keeping in view the facts of each case especially the periods
releasing them on bail by furnishing personal bonds. b
4. We make it clear that it shall not be necessary for any of the
undertrials to move application for bail. The court shall, suo mptu, on the
authority of this Court’s order, consider the bail cases. This shall be done by
all the courts concerned within two weeks of the receipt of this order. We
give liberty to all concerned to approach this Court for further directions, if
necessary. ’’Sy- t c
5. A copy of this order be sent to the District & Sessions Judge, Delhi by
tomorrow. He shall issue the necessary directions in this respect to all the
courts functioning under his jurisdiction. A copy of this order be also sent to
the Superintendent, Tihar Jail with a direction that he shall bring this order to
the notice of all the undertrials concerned. S J*
6. So far as the undertrials accused of the offences under NDPS, Rape,
Dacoity and Robbery, TADA, Dowry and under Section 304 IPC, Official
Secrets Act, Escape and Extradition Act are concerned, the NCT -**- Delhi
Administration may consider and take appropriate decision in this respect.
We are informed by Mr N.N. Goswami that the matter is already under
consideration of the NCT, Delhi Administration. Hi
1. Copy of this order may be sent to the Chief Justice Delhi High Court
for his kind consideration. 'v* A S ’’
274
A CRIMINAL MISCELLANEOUS
SHANKARA & OTHERS . . PETITIONERS J’
VERSUS |'
STATE (DELHI ADMINISTRATION) .. RESPONDENTS
B (Dalveer Bhandari, J)
Crl. M(M) 2287/94 Date of decision : 1-6-95
1. CONSTITUTION OF INDIA—Article, 21—large
number of undertrial prisoners not released on bail
order because unable to fulfil conditions attached to
C
—
bail due to poverty and ignorance-—interests of
justice and also state itself conditions must be
—
relaxed in cases of minor offences personal bonds
sufficient for release.
D The petitioner had sent this petition from jail stating that he
had been charged with theft and that he hadremained in judicial
custody for about two years despite getting bail from the court.
Because of his extremely poor financial condition, he could not
fulfil conditions attached to the bail order—Court relaxed the
E conditions in petitioner’s bail order and petitioner was released on
—
personal bond. Court also directed I.G. Prisons to produce figures
regarding number of undertrial ^prisoners who had not been
released because of non-fulfilment of conditions attached to bail
order. Court ascertained through court commissioners facts related
F to various prisones and ordered relaxation of bail conditions. The
court further directed l.G. Prisons to submit; a;, comprehensive
report of all prisoners who. could not be released despite court
orders.
_ HELD: 'V , flK
1. In such cases of undertrial prisoners, who could not be
released despite bail orders, the State must adopt a more pragmatic
and reasonable approach, not only in the interest of the under¬
trial prison ersbutalso in the interest of the State and all
H concerned. . / : :
(Para 6)
2. .Another factor which ;must be taken into consideration is
the huge public expense involved in keeping prisoners in custody.
Our jails are already over-crowded. The fact that hundreds of
I these undertrials who have been released on bail have also not
been enlaiged, places" heavier burden on the available infra¬
structural facilities leading to the most deplorable and inhuman
conditions in jails.
.. 5 (Paras 8-9)
4^
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A?
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or infirm people and women. Section 445, read with marginal note, suggests
that deposit of money will do duty for bond “with or without sureties”. Sec- <, S
tion 441(1) of the Code appears as a stumbling block in the way of liberal % W ,
interpretation of bail as covering own bond with and without sureties. * But
incisively understood, the section 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. 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 may be released by the court to further the ends of justice
and nothing in Section 441(1) compels a contrary meaning. (Paras 24 and 25)
(A) Section 441(2) and (3) use the word ‘bail’ generically, because, the
expression is intended to cover bond with or without sureties. Section 389(1)
provides that pending any appeal by the 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 op his own bond,
i.e. the Court of Appeal may release a convict on his own bond without
sureties. It cannot be that an under-trial iS;' wqjs® off than a convict or
that the power of the court to release increases when the guilt is established.
If sureties are obligatory even for juveniles, females and sickly accused,
while they can be dispensed with, after being found guilty ; and if during
the trial, when the presence to instruct lawyers is more necessary , an accused
must buy release only with sureties while at the appellate level/ suretyship
is expendable, there is an unreasonable restriction on personal liberty with
discrimination writ on the provisions. Moreover, the power of the Supreme
Court to enlarge a person during the pendency of the Special; Leave Petition
or of an appeal is very wide under Order 21, Rule 27. And these 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. Bearing in mind,
the need for liberal interpretation in areas sof social justice, individual
freedom and indigene’s rights, it must be held that bail covers both release
on one’s own bond with Or without surety. (Paras 21, 26, 27, and 30)
Legal Literature, Indian and Anglo-American, or BMl Jurisprudence,
referred to.
(2) When sureties should be demanded and what sum should be insisted
upon arc dependent on variables. It shocks one’s conscience to ask a mason
to furnish sureties for Rs. 10,000. g (Paras 30, 32)
(3) The law does not proscribe sureties from outside. The law does
not prescribe geographical discrimination implicit in asking for sureties from
the Courtl district. Article 14 ©if -the Constitution protects all Indians qua
Indians within the territory of India. (Para 33)
It is for Parliament to consider whether in our socialist republic, with
.social Justice as its hallmark, monetary superstition, and not other relevant
(considerations like family ties, roots in the community, membership of stable
organisations should prevail for bail bonds to ensure that the bailee does
riot fled justice. (Para 35)
f
| VPS/3970/CR
A
t
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3. When this Court’s order- for release was thus frustrated by magis¬
terial intransigence the prisoner moved this Court again to modify the
original order “to the extent that 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 Hqn’blc Court may d6em fit.and proper”. From this
factual matrix three legal issues arise (1) Can the Court, under the Code
of Criminal Procedure; enlarge, on his ownbond without sureties, a person
undergoing incarceratipn for a non-bailffble/ offence either as undertrial 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 baii^
and (3) Is it v^thiniithe power of the Court to reject a
surety because heor his estate is situate in a different district or State?
4. This formulation turns the focus on an aspect of liberty bearing
on bail jurisprudence. The victims, when suretyship is insisted on or heavy
sums are demanded by way of bail or local bailors alone are persona grata,
Snay w-ell be the weaker segments of society like the proletariat, the linguistic
and other minorities and distant denizens from the far corners of our country
with it,'s vast diversity. In fact the grant of bail can be stultified or made
inh^OSSibly inconvenient and expensive if the Court is powerless to dispense
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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 4 V
exasperating and expensive. The problem is plainly one of human rights,; '
'J
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:%as
permitted to intervene and counsel for the parties also made ^ubniissiofi^.
We record our appreciation of the amici curiae for their services and proceed
to discuss the triple issues formulated above.
5. There is already a direction for grant of bail by this Court itg- 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 never conclude and iritis
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 j;we -haV^: d to examine
the question from a wider perspective bearing in mind prisoner’syights in
an international setting and informing ourS^lyesJjf the -historical origins and
contemporary trends in this branch of lawit, Social Justice is the signature
tune of our Constitution and the little plan (n peril of losing his ItbpMy is
the consumer of Social Justice. . l
6. 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 semantic?. We have to interdict
judicial arbitrariness deprivatory of liberty and ensure ‘fair procedure’ which
has a creative connotation after Mcmeka GandhiK: 'V, ;
'’i'
Before we tutn to the provisions of the Code and dwell on the text
7.
of the sections we may as well remember what Justice Frankfurter said :
“there is no surer wayjp misread a documppt Jo read it liteially*”. t^an
8. Speaking ^c^rera^y, we agree ^itff tlie annotation of the expression
‘bail’ given in tile American Jurisprudence^ Fdn. Vol. 8, Article 2,
p. 783)
The term ‘bail bond’ ah^ ‘recognizance’ are used interchangeably
in many bail statutes, ahd quite generally without distinction by the ,
9. The concept of bail has a long history briefly set out in the publi- .
cation on ‘Programme in Criminal Justice Reform’ : v
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 t %
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 their own- choos¬
ing who accepted responsibility for assuring their appearance at trial,
If the accused did not appear, his bailor would stand trial in his place, y"
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 collateral 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 in court.* g
10. It sounds like a culture of bonded labour; and yet are we to cling
to it ! Of course, in the United States, since theti, the bondsman emerged
as a commercial adjunct to the processes of criminal justice, which, fn turn,
bred abuses and led to reform movements like the Manhattan Bail Project.
This research project spurn'd the National Bail Conference, held in <1964,
which in its crucial chain reaction jirovided 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 reforfp was necessary. & Indeed, this legislative
'
scenario has a lesson for India where a much litter Crirninal Procedure Code,
1973 has largely left untouched ancient provisions on this subject, incongruous
with the Preamble to the Constitution. ..g '
12. The American Act Jpf 1966 has Stipulated, inter alia, that release
should be granted in non-capital cases where there is reasonable assurance
the individual will reappear when required ; that the Courts should make use
of a variety of release options depending on the circumstances ; that infor¬
mation should be developed about the individual on which intelligent
.selection of alternatives should be based.
-
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52 SUPREME COURT CASES (1978) 4 SCC
—
W
—
This system has endured archaic, Wyust-.and Virtually unexamined
since the Judiciary Act of 1789.
»
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 ife
quite a large number of cases. Moreover, the bail system causes discrimi¬
nation 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 find it difficult to furnish bail even in a small amount. (emphasis added)
17. 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 haseveu to
incur debts to make payment to themfor Securing his release ; in the
other he is deprived of his liberty without trial and conviction and- this
leads to grave consequences, namely (I ) though presumed innocent
he is subjected to the psychological and physical deprivations qf jail life ;
(2) he loses his job, if he has one, and js deprived of j hp. opportunity
to work to support himself and his family with the result that burden
of his detention falls heavily on the innocent the family,
(3) he is prevented from contributing to the preparation of his defence;
mem^fs^of
and (4) the public exchequer has to bear the cost of maintaining him
in the jail.4
18. The Encyclopaedia Britannica brings Out the same point even in
more affluent societies : £
Bail, procedure hy which a judge or jpagiktrate sets at liberty one
who has been arrested, or imprisoned, upon receipt of security to ensure
the released prisoner’s later appearance iri^ court for further proceed¬
ings. . . . Failure. to consider financial,’ability has generated much con-
troveisv in recent years, for bail rcquarpmCTtts 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 sp^ciahconsideration tn indigent accused persons who, because
of thru comn^jmity standing and past history, are considered likely to
appeal; in court.5 A ’
18A. Again :
Wc should suggest that the Magistrate must always bear in mind
that, monetaiy bail is not a necessary element of the criminal process and even
4. Report of the Legal Aid Committee P. N. Bhagwati, p. 185
appointed by the Government of 5. Encyclopaedia Britannica, Vol. I, p. 73G
Gujarat, 1971 and headed by the then (15th Edn) Micro Edn.
£ Chief Just-ce of the State, Mr, Justice
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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. V,
22. Let us now examine whether there is anything in the provisions x;"'
%
of the Code which make this meaning clearly untenable. & 5
. >>
23. A semantic smog overlays the provisions of bail in the Code apd
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 to him.”
Law, at the service of life, must respond interpretatively to raw realities
and make for liberties. 4
24. Primarily Chapter XXXIII is (he nidus of the law of bail. Sec¬
tion 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¬
tion 436(2) covers own bond. Section 437 (2) blandly speaks of bail but
speaks of release on bail of persons below 16 years of 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 sureties. But Sec¬
tion 437(2) distinguishes between bail and bond without sureties.
25. Section 445. suggests, especially read with the marginal note, that
deposit of money will do duty for bond or without sureties’. Sec¬
tion 441(1) of the Code may appear to b^ a stumbling block in the way of
the liberal interpr^taUpn of bail as covering *<wn bond with and without
sureties. Superficially viewed, it uses the Words ‘bail’ and ‘own bond’ as
antithetical, if the reading is literal.?? Incisively understood, Section 441(1)
provides -for both t«e bond of the accused and the undertaking of the
surety being conditioned in the manner mentioned *n the sub-section. To
read ‘bail^as including only cases of release with sureties will stultify the
spb-scction ; for then, an accused released on his own bond without bail,
pc. surety, cannot be conditioned to attend at the appointed place. Sec¬
tion 44 1(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
of potential, may be released by the court to further the ends of justice and
nothing in Section 441(1) compels a contrary meaning.
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—
31. Even so, poor men Indians are, in monetary terms, indigents y —
young persons, infirm individuals and women are weak categories and courts &
should be liberal in releasing them on their own recognisances put what-
ever reasonable conditions you may.
—
32. It shocks one's conscience to ask a mason like the petitioner to
furnish sureties for Rs. 10,000. 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. r