# ' MOTI RAM & ORS v. STATE OF M.P

- **Citation:** [1979] 1 S.C.R. 335
- **Court:** Supreme Court of India
- **Decided:** 1978-08-24
- **Bench:** V. R. Krishna !Yer, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/moti-ram-ors-v-state-of-m-p-7582
- **Pages:** 14

## Headnote

335
Bail jurisprudrence-Enlargement on bail with or without sureties-Scope of
Ss. 440(1), 441, 445 read withs. 389(1) of the Code of Criminal Procedure, 1973
-Criteria 10 guide in quantifying the amount of bail and acceptance of surety
whose t.1tate is situate in a different district or State, explained.
Pursuant to the dire~ions of the Supreme Court for releasing the petitionera.ppellant "on bail to the satisfaction of the Chief Judicial Magistrate," the
Magistrate ordered that a surety in a sum of Rs. 10,000/- be produced. When the
petitioner produced one, the magistrate made an odd order refusing to accept
the suretyship of the petitioner's brother be.:ause he and his assets 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 R'i. 2,000 /- or on executing a personill 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 un his
own bond in a sum of Rs. 1,000 /- the Court,
l-IELD· : ( 1) Social Justice is the signature tune of our Constitution anu
A
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the Jittleman in peril of losing his liberty is the consumer of social justice. And E
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 bail.or
across the district borders as good or the sum is so excessive that to procure
a wealthy surety may be both exasperaiting and
expensive.
The problem is
plainly one of hum.an rights, especially freedom vis-a-vis, the lowly and necessitates the Supreme Court to interdict judicial arbitrari!l'Css deprivatory of liberty
and ensure "fair procedure" which has a creative connotation alter
Maneka
p
Gandhi [1978] 2 SCR 621. [338 C-F, 339 A-BJ
(2) Bail covers release on one's own bond with or without sureties. as the
legal literature, Indian and Anglo-American on bail jurisprudence ]ends countenance and the need for liberal interpretation in areas of social justice, individual
freedom and indigent's rights Jllstifies.
When sureties should be demanded and
what sum should be insiBted on are dependent on variables. [344 G, 347 CJ
G
(3) A semantic smog overlays the provisions of bail in the Code and prisoners' rights, when cast i~ ambiguous language become precarious. [345 C]
(8·) 'Bail' in s. 436 of the Criminal ·Procedure Code suggests 'with or without
surecies'.
And, 'bail bond' in s. 436(2) covers own bond. [345 El
(b) 'Bail' in s. 437 (2) suggests release, the accent being on undertaking
to appear when directed, not on the production of sureties. But s. 437(2) distinguishes between bail and bond without sureties. [345 F-G]
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SUPREME COURT REPORTS
[1979] 1 S.C.R.
(c) Section 445 suggests, especially read with the marginal note that deposit
of money will do duty for bond 'with or without sureties'. [345 GJ
(d) Superficially viewed, s. 441(1) uses the words 'bail' and 'own bond'
as antithetical, if the reading is liberal. Incisively understood, section 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 stultify the sub-section, for
then, an accused released on his own bond without bail, i.e. surety, cannot be
conditioned t0 attend at the appointed place.
Section 441(2) uses the word
'bail' to inc1ude 'own bond' loosely as meaning one or the other or
both.
Moieover, an accused, in judicial custody, actual or potential, may be released
by the Court to further the ends of justice and nothing in s. 441 (1) compels a
oontrary meaning.
S. 441(2) and (3) use the word 'hail' generically because
the expression is intended to cover bond with or without sureties; [345 H, 346
A-CJ
(e) When the Court of appeal as per the import of s. '38

## Text

'
MOTI RAM & ORS.
v.
STATE OF M.P.
August 24, 1978
(V. R. KRISHNA !YER AND D. A. DESAI, JJ.)
335
Bail jurisprudrence-Enlargement on bail with or without sureties-Scope of
Ss. 440(1), 441, 445 read withs. 389(1) of the Code of Criminal Procedure, 1973
-Criteria 10 guide in quantifying the amount of bail and acceptance of surety
whose t.1tate is situate in a different district or State, explained.
Pursuant to the dire~ions of the Supreme Court for releasing the petitionera.ppellant "on bail to the satisfaction of the Chief Judicial Magistrate," the
Magistrate ordered that a surety in a sum of Rs. 10,000/- be produced. When the
petitioner produced one, the magistrate made an odd order refusing to accept
the suretyship of the petitioner's brother be.:ause he and his assets 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 R'i. 2,000 /- or on executing a personill 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 un his
own bond in a sum of Rs. 1,000 /- the Court,
l-IELD· : ( 1) Social Justice is the signature tune of our Constitution anu
A
B
c
D
the Jittleman in peril of losing his liberty is the consumer of social justice. And E
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 bail.or
across the district borders as good or the sum is so excessive that to procure
a wealthy surety may be both exasperaiting and
expensive.
The problem is
plainly one of hum.an rights, especially freedom vis-a-vis, the lowly and necessitates the Supreme Court to interdict judicial arbitrari!l'Css deprivatory of liberty
and ensure "fair procedure" which has a creative connotation alter
Maneka
p
Gandhi [1978] 2 SCR 621. [338 C-F, 339 A-BJ
(2) Bail covers release on one's own bond with or without sureties. as the
legal literature, Indian and Anglo-American on bail jurisprudence ]ends countenance and the need for liberal interpretation in areas of social justice, individual
freedom and indigent's rights Jllstifies.
When sureties should be demanded and
what sum should be insiBted on are dependent on variables. [344 G, 347 CJ
G
(3) A semantic smog overlays the provisions of bail in the Code and prisoners' rights, when cast i~ ambiguous language become precarious. [345 C]
(8·) 'Bail' in s. 436 of the Criminal ·Procedure Code suggests 'with or without
surecies'.
And, 'bail bond' in s. 436(2) covers own bond. [345 El
(b) 'Bail' in s. 437 (2) suggests release, the accent being on undertaking
to appear when directed, not on the production of sureties. But s. 437(2) distinguishes between bail and bond without sureties. [345 F-G]
H
A
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c
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SUPREME COURT REPORTS
[1979] 1 S.C.R.
(c) Section 445 suggests, especially read with the marginal note that deposit
of money will do duty for bond 'with or without sureties'. [345 GJ
(d) Superficially viewed, s. 441(1) uses the words 'bail' and 'own bond'
as antithetical, if the reading is liberal. Incisively understood, section 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 stultify the sub-section, for
then, an accused released on his own bond without bail, i.e. surety, cannot be
conditioned t0 attend at the appointed place.
Section 441(2) uses the word
'bail' to inc1ude 'own bond' loosely as meaning one or the other or
both.
Moieover, an accused, in judicial custody, actual or potential, may be released
by the Court to further the ends of justice and nothing in s. 441 (1) compels a
oontrary meaning.
S. 441(2) and (3) use the word 'hail' generically because
the expression is intended to cover bond with or without sureties; [345 H, 346
A-CJ
(e) When the Court of appeal as per the import of s. '389(1) 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's
guilt status that is germane.
That a guilty man may claim judicial liberation
D
pro te111pore without sureties while an undertrial cannot, is a reductio ad absurdum. (346 D-E]
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(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
oircumspection. [346 F-G]
(6) If sureties a•re obligatory even for juveniles, fe1nales and sickly accused
while they can be dispensed with, after being found guilty, if during the trial
when the presence to in.stru..:t lawyers is more necessary, an accused must buy
rclea~c only with sureties while at the -appeilate level, suretysfiip is expendable,
there is unreasonable restriction on personal liberty with discrimination writ on
the proviSions. Thei hornet's nest of Part III need not be provoked if the Court
reads 'bail' to mean that it popularly does, and lexically a•.1d in American Jurisprudence is stated to mean, viz. a generic expression used to describe judicial
release from custodia iuris. [347 A-BJ
(7) Art. 14 protects all Indians qua Indians, within the territory of India.
Art. 350 sanctions representation to any author!ty, including a Court, for redress
of grievao;ices in any Iangua.ge used in the Union of India. Equality before the
law implies that even a vakaiat or affirmation made in anv State language accord·
ing to the law in that Sta.te must be accepted everywhere in the territory of
India, save where a valid legislation to the contrary exists.
Otherwise, an
Adivasi v.'iII be unfree in Free India, and likewise many other minoritic<;.
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, DJ
[The Court left open to the ·Parliament to consider whether in our
socialist republic with social justice as its hallmark, monetary :supersti~
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MOTi RAM v. M.P. STATE (Krishna Iyer, !.)
337
tion, not other relevant consideration like family ties, roots
in
the
comnn1nity, membership. of stable organisations should prev&il for bail
bonds to ensure that the 'bailee' does not flee justice.]
CRIMINAL APPELLATE JURISDICTION : Criminal Misc.
Petition
1649 of 1978. Application for bail.
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. lain and H.K. Puri
for the Intervener
The Order of the Court was delivered ·by
KRISH~A 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
in a sum of Rs. 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 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
lndia.
India is one and not a conglomeration of districts, untouch·
ably apart.
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When this Court's order for
release was thus frustrated
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magisterial intransigence the prisoner moved this Court again to
modify the original order "to the extent that petitioner be released
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SUPREME COURT REPORTS
[1979) 1 S.C.R.
on furnishing surety to the tune of Rs. 2,0001- 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
arc persona grata, may well be the weaker segments of society like
the proletariat, the linguistic and other minorities and distant denizens from the far corners od' 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 subm1ss1ons.
We record our appreciation of the amid 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 Jittlo
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 iin
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Jnstic.:e V. R. Krishna Iyer.
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MOTi RAM v. M.P. STATE (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
dassified 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.(')
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 'baiY given in the American Jurisprndence (2nd Edn. Vol. 8,
Art. 2, p. 783) :
"The term 'bail bond' and 'recognizance' are used interchangeably in many bail statutes, and quite generally without
distinction by the courts, and are given a practically identical
effect.''
According to the American Jurisprudence, Art. 6, p. 785, there is
power in the court to telease 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 publi-
<:ation 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 idelivered, to repuiable third parties
of
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{I) [1978] 2 S C.R. 621-[1978] l S.C.C. 248.
{2) Massachusetts B. and Insurance ('o. '" U. S., 352 U.S. 128. 138.
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SUPREME COURT REPORTS
[1979] 1 S.C.R.
their own choosing who accepted responsibility for assnring
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 modem practice of posting a money bood
through a commercial bondsman who
receives
a
cash
premium for his
service, and usually demands some collateral 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 in
court."(')
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 bonds-
!llan emerged as a rnmmercial adjunct to the processes of criminal
justice, which, in tum, 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 cmcial 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 tha:t 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 sm~l 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
bebased.
(I) Vera Institute of Justice Ten-year Rerort 1961-71 p. 20.
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MOTi RAM v. M.P. STATE (Krishna Iyer, J.)
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 2,195 defendants released in this way less than one percent failed to appear when required. In short, risk of financial loss
is an 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 ii he has one and is prevented from contributing to the
preparatiJn of his defence.
Equally important, the burden of hist
detention frequently falls heavily on the innocent members of his
family.
It is interesting that
American
criminological
thinking
research had legislative response and the Bail Reforms Act,
· came into being. The then President, Lyndon B. Johnson
certain observations at the signing ceremony :
and
1966
made
"Today, we join to recognize a major development in
our system of criminal justice : the reform of the bail system.
This system has endured-archaic,
unjust and
virtually unexamined-since the Judiciary Act of 1789.
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The principal purpose of bail is to insure that an accused person
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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 Jhe 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)
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SUPREME COURT REPORTS
(1979] 1 S.C.R.
Coming to studies made in India by knowledgeable Committees
we find the same com1otation 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 impossible 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 abk
to furnish bail on account of their poverty while the weal··
thier persons otherwise similarly situate would be able lo
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 find 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
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MOT! RAM v. M.P. STATE (Krishna Iyer, J.)
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
contributing to the preparation of his defence; and ( 4) the
public exchequer has to bear the cost of maintaining him
in the jail."(')
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
receip\ 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 freedom 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.'' ( 2 )
"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
Stati·s
should now inform the decisions of the Magistrates in regard to pre-trial release.
Every other feasible method of
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(1) Report of the Lei:ral Aid Committee arrointcc by the Govt. of Gujar(l.t_ 1971,
and. headed by the then Chief Justice of the State, !vfr. Justiee P.N. Bhagwati
P- 185.
(2) Encyclopaedia Britaruiica, Vol. I, P. 736 (15th Edn) Micro edn.
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SUPREME COURT REPORTS
[ 1979J I S.C.R.
pre-trial release should be exhausted before resorting
to
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 of nonappearance 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 not likely to abscond, he can safely release
the accused 011 order to appear or on his own recognizance ...... "(')
(emphasis added)
A latter Committee with Judges, lawyers, members of Parliament
and other legal experts. came to the same conclnsion 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 release 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 of his
relatives or releasing him cm 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 furnshing 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 bail. loosely
used, is comprehensive enough to cover release on one's own bond
<i
with or without sureties.
H
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 q;estion
(I) Report of the Legal Aid Committee appointed by the Govt. of Gujarat 1971.
P. !SS.
(2) Report of the Expert Committee on Legal Aic!.-ProcessLal Jt.sticc to the
People, May 1973.
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MOTi RAM v. M.P. STATE (Krishna Iyer, J.)
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 j>revail 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
particip1ted-many of them did--covered the wider are_!I 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 precarions. Where doubts arise the Ga.ndhian 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 yQUrself, if the step you contemplate is going to be of any nse 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. Sec.
A
B
c
D
•
436 of the Code speaks of bail but the proviso makes a contradistinction between 'bail' and 'own bQnd wi.thout sureties'.
Even here E
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. 436(2) covers own
bond.
Sec.
437 (2) blandly speaks of bail hut speaks of release on bail of persons below 16 years of age, sick or infinn people and women. It
cannot be that a small boy or sinking invalid or pardanashin should·
F
be refused release and suffer stress and distress in prison nnless
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 th" productiou of snreties. But Sec. 437(2) distinguishes between bail and bond withont sureties.
Sec. 445 suggests, especially read with the marginal note,
that
deposit of money will do duty for bond 'with or without sureties.
Sec. 441 (I) of the Code may appear to be a stumbling block in the
way ci. 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
G
H
A
B
c
D
•
E
F
G
H
346
SUPREME COURT REPORTS
(1979] 1 S.C.R.
understood, Sec. 441 ( 1) provides for both the bond of the accused
and the und§rtaking 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 sul>-section; for then,
an
accused released on his own bond without bail, i.e., surety, cannot
be conditioned to attend at the appointed place.
Sec. 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 Sec. 441 (1) compels a contrary meaning.
Sec. 441 (2) and (3) use the word 'bail' generically because the
expression is intended to cover bond with or wiihout 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 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 reductio ad absurda111.
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 ta
be so, may theoretically be released on his own bond without sureties while a suspect, presumed to be innocent, cannot he.
Such
a
strange anomaly could not be, even though it is true that the Supreme
Court exercises wider powers with greater ci.rcu1nspcction.
The truth, perhaps, is that 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)
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MOTi RAM v. M.P. STATE (Krishna Iyer, J.)
347
lf sureties arc obligatory even for
juveniles,
females U!Jd sickly
accused :while they can be dispensed with, after being (ound 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 III need not be provoked ii we
read 'bail' to mean that it popularly does, and
lexically and
m
American J nrisprudencc is stated to mean, viz., a generic expression
used to describe judicial release
from
custodia iuris.
Bearing
in
min~ 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
snreties should be demanded and what sum should be insisted on
.arc dependent on variables.
A
B
c
Even so, poor n1en-Indians are, in
n1onetary
tern1s,
indigents
young persons, infirm individuals and won1en are weak categories anL1
D
courts should be liberal in releasing them on their own recognisances
put whatever reasonable condition you may.
Jt ,;hocks one's conscience to ask a mason like the petitioner to
•furnish sureties for Rs. 10,0001-.
The magJistrate must be given the
benefit of doubt for not fully appreciating that our Constitution, enactE
cd by 'We, the People of India", is meant for the butcher, the baker and
the candle-stick maker-shall we add. the bonded lab1mr and
pavc111cnt d\\
1cller.
To add insult to injury, the magistrate has demanded sureties from
his own distr'.ct: (We assume' the allegation in the petition).
What is
F
a Malayalec, Kannadiga, Tamilian or Andhra to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair.
Pahalga!l'c vf Chandni Chowk ''
He cannot ha;c sureties owning properties in these distant places. He may not know any one there and
n1ight have conic in a batch or to seek a job or in a n1orclta.
JuJ.h.:ial
disruption of Indian unity is surest achieved by such provincial allergies.
G
What law prescribes sureties from outside or non-regional language
applications?
What law prescribes the geographical discrimination
implicit in asking for sureties from the court district?
This tendencv
takes many forms, sometimes. geographic, sometimes linguistic, sorn;-
times legalistic.
Art. 14 protects all Indians qua Indians, within the
territory of India.
Art. 350 sanctions representation to any authority,
H
including a court, for redress of grievances i"n any languag~ used in the
Union of India.
Equality before the law implies that even a vakalat
6-5~6 SCI /78
348
SUPREME COURT REPOji.TS
[1979] I S.C.R.
A or affirmation made in any State language according to the law in that
State m\Jllt be accepted everywhere in the territory of India save where
a valid legislation to the contrary exists.
Otherwise, an adil'asi will
be unfree ill Free India, and likewise many other minorities.
This
divagation has b~come necessary to still the judicial beginnings, a-nd
B 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 ow'n
bond in a sum of Rs. 1,000 /-.
An After word
C
W•o leave it to Parliament to consider whether in our socialist
republic, with social jnstice as irs hallmark, monetary superstition, not
other relevant considerations like family ties, roots in the community,
membership of stable organisations, should prevail for bail bonds to
ensure that the 'bailee' does not flee justice.
The best guarantee of
D presence in court is the reach of the Jaw, not the money tag. A parting
thought. If the indigents are not to be betrayed by the law including
bail Jaw, re-writing of many processual laws is an urgent desideratum;
a'nd the judiciary will do well to remember that the geo-legal frontiers
of the Central Codes cannot be disfignred by cartographic dissection
in the name of language of province.
S.R.
Petition allowed.
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