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1978 (8) TMI 234 - SUPREME COURT

1978 (8) TMI 234 - SUPREME COURT - 1978 AIR 1594, 1979 (1) SCR 335, 1978 (4) SCC 47 - CRIMINAL APPELLATE JURISDICTION: Criminal Misc. Petition 1649 of 1978. - Dated:- 24-8-1978 - KRISHNAIYER, V.R. AND DESAI, D.A., JJ. 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 JUDGEMENT KRISHNA IYER, J.- The law. in its majestic equality, forbids the rich as well as the poor to sleep under b .....

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trate ordered that a surety hl a sum of ₹ 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 suretyship of the petitioner's brother because he and his assets were in another district. If mason and mil .....

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une 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 incarceration for a non-bailable 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 c .....

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inorities 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 .....

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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 pris .....

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rred 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 express .....

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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 .....

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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 .....

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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 worth .....

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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 ar .....

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. 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 .....

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re trial. He stays in jail for one reason only-because he is poor...." (emphasis added) 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 unsatis .....

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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 d .....

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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 the psychological and physical deprivations of jail life; (2) he loses his job, if he ha .....

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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 free dom pending trial. Some courts now give special consideration to indigent accused persons who, because of t .....

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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 pre-trial release should be exhausted before resorting lo monetary bail. The practice which is now bein .....

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pear 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 .....

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uent 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, .....

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er 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 .....

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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 rele .....

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pear 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 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 st .....

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enerically 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 conv .....

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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 u .....

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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 .....

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recognisances put whatever reasonable condition you may. It Shocks one conscience to ask a mason like the petitioner to Furnish sureties for ₹ 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 hi .....

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