* 1 * Cri.Appln. 1396.2011 20 Dec, 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1396 OF 2011 Dayashankar Ram Naresh Singh and Ors. ....Applicants V/s. State of Maharashtra .....Respondent * * * * * Mr. N.K. Singh i/by. M/s. M.P. Vashi & Associates, Advocate for the applicant. Mrs. G.P. Mulekar, APP for State. CORAM :- Smt. R.P. SondurBaldota, J. 20 December, 2011. P.C. : 1. This application is by 220 applicants for quashing of the order dated 16th November, 2011 by which the Sessions Court, Sewri has directed the Investigation Officer, of Antop Hill Police Station to take steps to arrest all the applicants in L.A.C. No. 53 of 2011 on account of their failure to satisfy the condition of bail by furnishing surety. * 2 * Cri.Appln. 1396.2011 20 Dec, 2011 The learned counsel for the applicants, submits that applicants no.4, 5, 7, 18, 25, 29, 34, 36, 38, 42, 43, 44 and 53 have already been arrested by the Investigation Officer pursuant to the impugned order. The learned APP, confirms, the statement. 2. The application as filed originally did not contain the addresses of the applicants. Therefore, the application was adjourned to today to enable the applicants to furnish their addresses. The learned Counsel appearing for the applicants, today tenders addresses of all the applicants. The same are taken on file. 3. On 3rd November, 2011 all the applicants were arrested in L.A.C. No. 53 of 2011 for the offence punishable under Section 37(1) (e) of the Bombay Police Act and were produced on the next date before the learned Metropolitan Magistrate, 51st Court, Kurla, Mumbai. The offence alleged against the applicants being bailable, the learned Metropolitan Magistrate ordered that all the applicants be released on personal bond of Rs.3,000/-. They were granted time to furnish surety on/or before 10th November, 2011. The applicants, however, were unable to furnish surety within the time granted. Therefore, on 10th November, 2011 they filed an application for modification of the order for deleting the condition of furnishing of * 3 * Cri.Appln. 1396.2011 20 Dec, 2011 surety. In the alternative, they sought extension of time of one month to furnish surety. The learned Metropolitan Magistrate rejected the application since there was no Vakalatnama filed on behalf of all the accused persons. This order came to be challenged before the Sessions Court by the applicants by filing Miscellaneous Application No. 364 of 2011. That application came to be disposed off by the order impugned in the present application. The Sessions Court rejected the application on the ground that the applicants had neither furnished sureties nor moved the learned Metropolitan Magistrate for extension of time nor for reduction of the bail amount. On disposal of the Miscellaneous Application, the Sessions Court directed the Investigating Officer to take steps to arrest all the applicants, if they had not furnished bonds as directed by the learned Metropolitan Magistrate. 4. Mr. Vashi, the learned Counsel for the applicants, submits that both the Courts below erred in not taking into consideration the provision of Section 436 Criminal Procedure Code and the explanation thereto. Section 436 Criminal Procedure Code reads as follows : 436. In what cases bail to be taken. (1) “ When any person other than a person accused of a non- bailable offence is * 4 * Cri.Appln. 1396.2011 20 Dec, 2011 arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, [may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail] from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: [Explanation.- Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.] (2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446. 5. Mr. Vashi, submits that the applicants herein are poor hawkers and infact indigent persons. In any case, he submits that, in view of the explanation to Section 436(1) since the applicants were unable to give bail within one week of the date of their arrest, the Court ought to have presumed that they are indigent persons and discharged them on their executing bonds without securities for their * 5 * Cri.Appln. 1396.2011 20 Dec, 2011 appearance. 6. In the facts and circumstances of the case, the provision pointed out by Mr. Vashi applies in all force. Firstly, all the applicants are hawkers. Each is released on bail in the small sum of Rs.3,000/-. Each was to furnish surety in the same amount. Apparently, each could not get anybody to stand surety for him in the sum of Rs.3,000/- within the time granted. Therefore, it was sufficient ground for the Courts below to presume that each is an indigent person. Besides, all that the applicants had done was to participate in a protest march. It is not even the case of the prosecution that, any untoward incident happened during morcha or the persons in the morcha were unruly. Therefore, the application is allowed in terms of payer clause (a). The impugned order dated 16th November, 2010 passed by the Sessions Court in Miscellaneous Application No. 364 of 2011 is set aside. The order of bail granted to the applicants is modified by deleting the direction of furnishing surety. The applicants are directed to be released on bail only on execution of personal bonds in the sum of Rs.3,000/- as per the modified bail order. [SMT. R.P. SONDURBALDOTA, J] * 6 * Cri.Appln. 1396.2011 20 Dec, 2011