TMI Blog1978 (8) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 suretyship 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 on furnishing surety to the tune of ₹ 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ([1978] 2 S.C.R. 621 [1978] 1 S C.C. 248) 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 withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 nor 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 superv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 understood, Sec. 441(1) provides for both the bond of the accused and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 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 persons infirm individual a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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