ORDER
1. This application is through Jail moved for bail granted by the Sessions Judge.
2. The point for consideration is that application is whether the learned Sessions Judge while releasing the petitioner on bail by exercising power under [SECTION], [ACT] was right in insisting that the petitioner shall apart from executing a personal bond in a sum of Rs. 5,000/- with other conditions shall also deposit a case surety of Rs. 750/- in each case.
3. A complaint was lodged against the petitioner by the Girinagar Police, Bangalore in [CASE NUMBER] on the file of the IX Additional Chief Metropolitan Magistrate, Bangalore for the offence punishable under [SECTION], [ACT] in all the cases.
4. The petitioner was in judicial custody. He moved for bail before the learned Sessions Judge, Bangalore under [SECTION], [ACT] The learned Sessions Judge found the petitioner as entitled for bail and rightly ordered for his bail. However, he put among other conditions, a condition that in each case the petitioner shall deposit a cash security of Rs. 750/- which comes to Rs. 6,750/-. Aggrieved by the same, the said petitioner preferred this application seeking for modification of this condition imposed.
5. When the case was listed for orders on 19-8-1991, Smt. [ENTITY], Junior member of the Bar was requested to appear as Amicus Curiae to the petitioner. As desired by her, a week's time was granted.
6. When the case listed today for hearing, she contended that the learned Sessions Judge was not right in insisting a condition that the petitioner shall deposit a cash security of Rs. 750/- in each of the nine cases. Since the petitioner is a poor man, insisting such a condition to comply with, will amount to denial of the very bail that was granted. According to her, the conditions other than this condition imposed in the order are themselves sufficient to see that the petitioner does not flee from justice or shall not tamper with the prosecution evidence. To say that the approach of the Sessions Judge in insisting cash deposit of Rs. 750/- in each case is incorrect and oppressive in nature she relied on a decision reported in [PRECEDENT] wherein this Court has held as follows ([PRECEDENT]) :-
"[SECTION], [ACT] reads as follows :
'Before any person is released on bail or released on his own bond, a bond for such sum of money as the Police Officer or Court as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond and shall continue so to until otherwise directed by the police officer or Court, as the case may be.' It is clear from the words of the section that it contemplates taking of a personal bond from the accused person and a bond by one or more sureties. The section does not empower the Magistrate to demand cash security.
[SECTION], [ACT] states that when any person is required by any Court or officer to execute a bond, with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum or money or Government promissory notes to such amount as the Court or Officer may fix, in lieu of executing such bond. According to the section, if the accused wants to deposit any sum of money, it is open to the Court to accept the same. But the law does not empower the Court to insist on cash deposit to be made by the accused.
In [PRECEDENT], [ENTITY], J. (as he then was) held that [SECTION], [ACT] does not authorise the Magistrate to demand cash security from the accused. In paragraph 4 of the said judgment, his Lordship observed as follows :
"The language of [SECTION], [ACT] makes it perfectly clear that what that section contemplates is the furnishing of a personal bond, by the accused person and bond by one or more sufficient sureties. The accused as well as the sureties have, therefore, to execute only bonds which are sufficient in the mind of the Magistrate for the amount which he might have fixed. This is also the view taken by the Patna High Court in [PRECEDENT] and I respectfully agree with it. [SECTION] provides for a concession to an accused person who is unable to produce sureties. That section also makes it clear that the Magistrate is not bound to accept cash, but may permit an accused person to deposit a sum of money in lieu of executing a personal bond and giving surety of some persons. That section, however, does not authorise a demand of cash by Magistrate. Under these circumstances, even though an offer may have been made after the Magistrate apparently has made up his mind to demand cash security, it will not be covered by the terms of [SECTION], [ACT] and the demand of cash security in this case was clearly illegal.
The Patna High Court in [PRECEDENT] has held that the law does not contemplate or authorise the Magistrate to demand cash deposit as a condition to the release of an accused on bail. Similarly, the Nagpur High Court in [PRECEDENT], has held that [SECTION] only contemplates taking of a personal bond from the accused person and a bond by one or more sureties. The section does not empower a Magistrate to demand cash security."
The said provisions of 1898 are similar to [SECTION] and [SECTION] of the present [ACT] which reads :
"440 : Amount of bond and reduction thereof :
The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.
(2) The High Court or court of Session may direct that the bail required by a Police Officer or Magistrate be reduced.
Corresponding law : [SECTION] of [ACT] [SECTION] : Bond of Accused and sureties :
(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one of more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate sub-ordinate to the Court, as to such sufficiency or fitness.
Corresponding law : [SECTION] of [ACT]. [SECTION] says "in what cases bail to be taken". [SECTION] deals about the circumstances when bail may be granted in case of non-bailable offences. [SECTION] deals about the directions for grant of bail to person apprehending arrest. [SECTION] speaks about the special powers of High Court or Court of Session regarding bail. A reading of all these four sections do not say that while granting bail, the Court shall insist upon the accused to deposit cash security. As explained above, [SECTION] speaks about the amount of bond and reduction thereof, whereas [SECTION] says how the bond should be accepted. [SECTION] deals about the discharge of the accused from custody after executing the bond. [SECTION] speaks about the power to order sufficient bail when that first taken is insufficient. It says that 'if through mistake, fraud or otherwise, insufficient surities have been accepted, or if they afterwards, become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and on his failing so to do, may commit him to jail : [SECTION] speaks about discharge of sureties. [SECTION] is the one which speaks that "when any person is required by any Court or Officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government Promissory notes to such amount as the Court or Officer may fix in lieu of execution such bond." [SECTION] deals with the procedure when bond has been forfeited. [SECTION] speaks about cancellation of bond and bail-bond. [SECTION] deals with the procedure in case of insolvency or death of surety or when a bond is forfeited. [SECTION] deals about with the bonds required from minor. The other two sections (449 and 450) deals with appeal from orders under [SECTION], and power to direct levy of amount due on certain recognizances.
7. A reading of the entire Chapter which deals with the provisions relating to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. After all, the object of granting bail is to see that the liberty of an individual is extended. Of course, when an accusation is made against a person, in the event of his release, it is the duty of the Court to see that the interest of the State and the public is safeguarded. For that purpose, the Court is empowered to insist upon appearance of the accused whenever so required either by the Police or Court either for investigation or to take up trial. During this period the Court can also warn the accused of his activities or movements in any way causing a fear or resulting in tampering with the prosecution evidence. While the Court exercises its discretion, whether it is under [SECTION] or [SECTION] or [SECTION], it shall exercise the same properly and not in an arbitrary manner. The discretion exercised shall appear a just and reasonable one. It is true that no norms are prescribed to exercise the discretion. Merely because, norms are not prescribed for the Court to exercise discretion under [SECTION], [SECTION] or [SECTION] that does not mean the discretion shall be left to the whims of the Court. Guiding principle shall be as indicated earlier with sound reasoning and in no way opposed to any other law. The Legislature has given this discretion to the Court keeping full faith in the system of administration of justice. While administering justice; it is the duty of the Court to see that any order to be passed or conditions to be imposed shall always be in the interest of both the accused and the State. The conditions shall not be capricious. On the otherhand, it shall be in the aid of giving effect to the very object behind the discretion.
8. While granting bail, insisting on good behaviour or prompt attendance, executing personal bond further to safeguard his good behaviour and personal attendance may be supported by insisting upon additional sureties as the Court deems fit. But insisting upon local sureties or cash security is in correct and indirectly results in denial of bail granted earlier.
9. While deprecating the instance of local sureties or cash security, the Supreme Court has explained in detail in the case of [PRECEDENT], as follows (Paras 29, 30 and 32) :
"Bearing in mind, the need for liberal interpretation in areas of social justice, individual freedom and indigent's rights bail covers both release on one's own bond, with or without sureties. When sureties should be demanded and what sum would be insisted on are dependent on veriables.
Even so, poor men, young persons, infirm individuals and women, are weak categories, and Courts should be liberal in releasing them on their own recognisance - put whatever reasonable conditions they may.
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 [ACT], enacted by "We the People of India', it meant for the butcher, the baker, the candle-stick maker, the bonded labour and pavement dweller.
Held also : It was not within the power, of the Court to reject a surety because he or his estate was situate in a different districts or State. There was no law prescribing the geographical discrimination implicit in asking for sureties from the Court district. So the demand by the Magistrate of sureties from his own district was discriminatory and illegal (Para 32).
The Supreme Court authorised the Magistrate to release the petitioner on his own bond for Rs. 1,000/- (Para 33)."
10. The Supreme Court granted an order of bail with the observations "to the satisfaction of the Chief Judicial Magistrate". The directions of the Supreme Court did not spell out the details of the bail, and so the Magistrate ordered that a surety in a sum of Rs. 10,000/- be produced. The petitioner could not afford to procure that huge sum or manage a surety of sufficient prosperity. In addition to this, the accused also pleaded inability to comply with the other condition viz., furnishing local surety. When the matter went up to the Supreme Court, it held as above.
Likewise, the Supreme Court in the case of [ENTITY] v. State of Bihar, held as follows (Para 2) :
"2. Heard counsel for the parties. The condition imposed by the High Court for enlarging [ENTITY], appellant No. 1 on bail, namely that he should furnish security for rupees one lakh in cash or in fixed deposit of any nationalised bank in Bihar with two sureties residing in the State of Bihar each for a like amount appears to be excessively onerous. In the circumstances of this case, it virtually amounts to denial of bail itself. It is therefore ordered that appellant No. 1 shall be enlarged on bail on his furnishing a bail bond for Rs. 25,000/- with two sureties each for the like amount to the satisfaction of the learned Special Judge. The learned Special Judge need not insist that the appellants should produce sureties who are residing in Bihar only. The order of the High Court shall stand modified accordingly."
11. In the case on hand, the present approach of the learned Sessions Judge in insisting upon the petitioner to deposit a cash security of Rs. 750/- in each case, totalling Rs. 6750/- is not only harsh and oppressive but indirectly denial of bail thus depriving the person's individual liberty.
Against the Supreme Court in the case of [PRECEDENT] while dealing with the scope of [SECTION] and [SECTION], [ACT] and conditions to be imposed held as follows (Para 4) :
"Even under the law as it stands today, the Courts must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties. That concept is outdated and experience has shown that it has done more harm than good. The new insight into the subject of pre-trial release which has been developed in socially advanced countries and particularly the United States should now inform the decisions of our Courts in regard to pre-trial release. If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond it can safely release the accused on his personal bond. To determine, whether the accused has his roots in the community which would deter him from fleeing the Court should take into account, the following factors concerning the accused.
1. The length of his residence in the community;
2. his employment status, history and his financial conditions;
3. his family ties and relationship;
4. his reputation, character and monetary condition;
5. his prior criminal record including any record or prior release on recognizance or on bail;
6. the identity of responsible members of the community who would vouch for his reliability;
7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non-appearance, and
8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear."
If the Court is satisfied on a consideration of the relevant factors that the accused has his ties to the community and there is no substantial risk of non-appearance, the accused may as far as possible be released on his personal bond. But even while releasing the accused on personal bond, it is necessary to caution the Court that the amount of the bond which it fixes should not be based merely on the nature of the charge. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. The enquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not therefore be insisted upon as a condition of acceptance of the personal bond.
[ENTITY] J :- There is an urgent need for a clear provision enabling the release in appropriate cases of an under trial prisoner on his bond without sureties and without any monetary obligation. 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 good ground for complaining of invidious discrimination (Para 11)".
12. Hence, for the reasons stated above, I pass the following order :
The order passed by the Session Court, Bangalore so far it relates to depositing cash security of Rs. 750/- in each case is quashed. The other conditions are held as sufficient. This, petition allowed in part. The trial Court is directed to release the petitioner on bail if he complies with the other conditions as directed by the Sessions Judge in [CASE NUMBER].
13. I will be failing in my duty if I do not place on record the assistance rendered by Smt. [ENTITY], Junior member of the Bar, and also Mr. [ENTITY], learned High Court Government Pleader who assisted the Court in passing this order.
14. Petition partly allowed.