Criminal Misc
Petition 1649 of 1978
Application for bail
section section Khanduja for the Appellant
I N Shroff and section K Gambhir for the Respondent
V M Tarkunde K T Harinder Nath R K Jain and HK 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 10000 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 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 2000 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 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 suretyship is insisted on or heavy sums are demanded by way of bail or local bailors alone are presona 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 article 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 article 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 SCR 621 1978 1 S CC 248
2 Massachusetts B and Insurance Co vs U S  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 2195 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 jail1 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 free dom 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 PN Bhagwati p 185
2 Encyclopaedia
Britannica Vol
I P 736 15th Edn Micro edn
344 pre trial release should be exhausted before resorting lo 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 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 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 2 Report of the Expert Committee on Legal Aid Processual 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
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
4362 covers own bond
4372 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
4372 distinguishes between bail and bond without sureties
445 suggests especially read with the marginal note that deposit of money will do duty for bond with or without sureties
4411 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
4411 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 ie surety cannot be conditioned to attend at the appointed place
4412 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
4412 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
3891 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
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 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 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 100000 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 some times 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 some times 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 SCI78 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 1000 
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
SR Petition allowed


Summary:
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 10000 be produced
When the petitioner produced one
the magistrate made an odd order refusing to accept the suretyship 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 2000 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 1000 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 section 436 of the Criminal Procedure Code suggests with or without sureties
And bail bond in section 4362 covers own bond
345 E b Bail  in section 437 2 suggests release the accent being on undertaking to appear
when directed not on the production of sureties
But section 1372 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 section 441  1  uses the words bail  and own bond  as antithetical if the reading is liberal
Incisively understood Section 4411 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 ie surety cannot be conditioned to attend at the appointed place
Section 4412 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 4411 compels a contrary meaning
section 4412 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 section 3891 may release a convict on his own bond without sureties surely it cannot be that an undertrial 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 undertrial cannot is a reductio 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 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 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