1 (Appa 1171 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1171 OF 2011 IN CRIMINAL APPEAL NO. 452 OF 2007 Gopi Kandaswami Kavandar ...Applicant Vs. State of Maharashtra ...Respondent ----- Ms.Rebecca Gonsalvez for Applicant Smt.V.R.Bhosale -APP for State ----- CORAM: V.M. KANADE, & A.M. THIPSAY, JJ. DATED: 27th September, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Applicant and the learned APP for State. 2. The Applicant was convicted for the offence punishable under section 302 r/w. 120B or 34 of the Indian Penal Code. The other accused have been released on bail. This Court had directed that the Applicant be released on bail in a sum of Rs.5,000/- with one or two sureties in the like amount by its judgment and order dated 14th December, 2007. However, since the Applicant was not in a position to furnish the surety for the said amount, the Applicant 2 (Appa 1171 of 2011) continued to be in jail. Thereafter, another application was filed in 2010. However, the said application was not pressed and therefore, was disposed of. Third Application was filed being Criminal Application no.89 of 2011. In the said application, the direction was given by the Court to enlist the criminal appeal for final hearing in the week commencing from 28.2.2011. Liberty, however, was granted to the Applicant to apply again for bail if the appeal is not heard within a four weeks from the said order. Thereafter, another application was filed dated 16th June, 2011 in which a similar prayer was made that the Applicant be released on cash bail. This application was also rejected by the Division Bench (Coram: Naresh H. Patil, & Mrs. Mridula R. Bhatkar, JJ) and the Division Bench directed the Registry to list the criminal appeal for final hearing on 25th July, 2011. In spite of the said direction, the appeal is not yet disposed of and is pending before this Court. 3. The Applicant has already undergone 15 years of actual sentence. Moreover, the Applicant was directed to be released on bail by this Court on 14th December, 2007 and merely because he was unable to furnish surety, he could not avail of the bail granted by this Court. The Apex Court in the case of Moti Ram and 3 (Appa 1171 of 2011) Others vs. State of Madhya Pradesh [(1978) 4 Supreme Court Cases 47] has observed that once the Court comes to the conclusion that the accused is entitled to be released on bail, the in such cases the Court should not impose a condition which is impossible to perform. The Apex Court has, therefore, observed that in such cases in order to ensure that the Applicant does not abscond some conditions can be imposed to secure his presence. In the present case, the Applicant was directed to be released on bail in 2007, more than five years have passed. However, merely because he is not in a position to furnish any surety, he is still languishing in jail. While releasing the Applicant on bail, this Court has observed that all other accused have been released on bail. 4. The Apex Court in the case of Moti Ram (supra) has observed in paragraph 6 of its judgment as under: “6. 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 4 (Appa 1171 of 2011) creative connotation after Maneka Gandh1”. The Apex Court further, in paragraph 25 of the said judgment, has considered various provisions regarding procedure of releasing a person on bail. Paragraphs 25 and 26 of the said judgment reads as under:- “25. Section 445 suggests, especially read with the marginal note, that deposit of money will do duty for bond 'with or without sureties'. Section 44191) of the Code may appear to be 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, Section 44(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 stultify the sub-section ; for then, an accused released on his own bond 1 (1978( 1 SCC 248 5 (Appa 1171 of 2011) without bail, i.e. surety, cannot be conditioned to attend at the appointed place. Section 441(2) 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 Section 441 (1) compels a contrary meaning.” “26. Section 441(2) and (3) use the word 'bail' generically because the express is intended to cover bond with or without sureties.” Similarly, in para 30 of the said judgment, the Apex Court has observed as under:- “30. 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 6 (Appa 1171 of 2011) on the provisions. The hornet's nest of Part III need not be provoked if we read 'bail' to mean that it popularly does, and lexically and in American Jurisprudence is stated to mean, viz. a generic expression used to describe judicial release from custodia juris. 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.” The Apex Court in the case of Hussainara Khatoon and Others vs. Home Secretary, State of Bihar [(1980) 1 SCC 81], in para 11 of its judgment has observed as under: 11.While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary 7 (Appa 1171 of 2011) obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial 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 ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step in defence of individual liberty if appropriate provision was made in the statute for non-financial releases.” 8 (Appa 1171 of 2011) 5. In our view, taking into consideration the observations made by the Apex Court in the aforesaid judgments, merely because an accused on account of financial constraints or on account of the fact that he is unable to get surety from the local area and cannot furnish that surety should not be a ground to detain him indefinitely in jail when the statutory appeal which is provided to him is not heard on account of pendency of cases in this Court. In our view, therefore, this is a fit case where the Applicant is permitted to furnish cash bail in the sum of Rs.5,000/- and, if possible, furnish surety for the said amount thereafter. He shall, however, report to the concerned police station in the first week and last week of each month. The hearing of the appeal and connected appeals is expedited. Place all these appeals on the final hearing board in the week commencing from 10th October, 2011. Application is disposed of. (A.M.THIPSAY J.) (V.M. KANADE J.)