Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 464 (ORI)

Naga Das v. State of Orissa

2015-08-06

S.K.SAHOO

body2015
JUDGMENT : S.K. Sahoo, J. 1. This is an application filed by the petitioners Naga Das and Pinkuna Das under section 439(1)(b) Cr.P.C. for waiving/modifying the condition No. (ii) as imposed by the learned Sessions Judge, Bhadrak while admitting the petitioners on bail vide order dated 15.7.2015 in BLAPL No. 1105 of 2015. The condition No. (ii) was a direction to each of the petitioners to deposit cash security of Rs. 20,000/-. On 2.3.2015 on the First Information report submitted by one Sk. Solemn of village Gujidarada before Inspector-in-charge, Bhadrak Town Police Station, Bhadrak Town P.S. Case No. 77 of 2015 was registered against unknown persons for offence punishable under sections 379/34 IPC. The said case corresponds to G.R. Case 404 of 2015 pending in the Court of learned S.D.J.M., Bhadrak. In the First Information Report, the informant alleged that on 2.3.2015 at about 11.30 a.m., he withdrew cash of Rs. 39,000/- from State Bank of India and kept Rs. 9,000/- in one of his pockets and the balance Rs. 30,000/- in a plastic bag which was hanging from the handle of his cycle. While the informant was purchasing grocery near Tarini Temple, two persons came in a motorcycle and took away the plastic bag. Even though the informant shouted and chased the culprits but he could not be able to catch hold of them. 2. During course of investigation, the petitioners were taken into custody and their application for bail was rejected by the learned S.D.J.M., Bhadrak. Though the petitioners moved an application for bail before the learned Sessions Judge, Bhadrak which was allowed vide order dated 15.7.2015 in BLAPL No. 1105 of 2015 but the following conditions were imposed:-- "(i) The petitioners be released on bail on their furnishing bail bond of Rs. 20,000/- only each with one solvent surety each for the like amount to the satisfaction of the learned S.D.J.M., Bhadrak; (ii) They shall deposit cash security of Rs. 20,000/- only each; (iii) They shall not involve themselves in similar type of crimes in future; (iv) They shall attend the Court on each date of hearing without fail, failing which the liberty so granted shall stand cancelled automatically." 3. Being unable to comply the condition No. (ii) i.e. deposit of cash security of Rs. 20,000/- each, the petitioners have filed this application for modification/waiving the condition No. (ii). 4. The learned counsel for the petitioners Mr. Being unable to comply the condition No. (ii) i.e. deposit of cash security of Rs. 20,000/- each, the petitioners have filed this application for modification/waiving the condition No. (ii). 4. The learned counsel for the petitioners Mr. Amulya Ratna Panda submitted that the condition No. (ii) imposed by the learned Sessions Judge, Bhadrak is very harsh and not at all warranted in the facts and circumstances of the case. He further submitted that the petitioners are unemployed persons and they belong to BPL category and imposition of such condition is practically denial of bail and since the petitioners are unable to comply with such condition, they are still in jail custody in an offence under section 379 IPC which is triable by Court of Magistrate. The learned counsel for the State Mr. Deepak Kumar Pani submitted that the Court has discretion to impose cash security in appropriate cases and taking into nature and gravity of the offences, when such a condition has been imposed, it cannot be said that it was quite unjustified on the part of learned Sessions Judge, Bhadrak to impose such a condition. 5. There is no dispute that the petitioners were taken into custody in an offence under section 379/34 Indian Penal Code which is triable by Magistrate. There is also no dispute that they could not furnish cash security of Rs. 20,000/- each for which in spite of the order of bail dated 15.7.2015, they are unable to be released from jail custody. 6. The very word 'bail' means the process by which the liberty of a citizen, which is under cloud, is to be restored, with or without conditions imposed by the competent court. Every person at the pre-trial stage is presumed to be an innocent person until his guilt is established as per the provisions of law. The trial may take years together and if the liberty of the person is jeopardised for such a long time, it will amount to violation of his fundamental right to protection of life and personal liberty as per provisions contained under Article 21 of the Constitution of India. The basic concept of bail is release of a person from the custody and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. The basic concept of bail is release of a person from the custody and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. Such a purpose cannot be achieved by releasing an accused from custody on furnishing of cash security, in the lieu of solvent sureties who can take effort to produce the accused released, at a given date, time and place. There is no specific provision in the Code of Criminal Procedure empowering the Magistrate to insist on furnishing cash security while granting bail to a person. Therefore, it can be reasonably said that the matter is left to the exercise of judicial discretion by the Magistrate concerned subject to the provisions in the Code. Section 437 Cr.P.C. which deals with grant of bail by a Magistrate in a case of non-bailable offence provides in sub-sec. (3) that when a person accused or suspected of commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose conditions which are mentioned under (a), (b) and (c) of sub-section (3). The Court has also power to impose any other conditions as would be necessary in the interest of justice. A High Court or Court of Session while dealing with the bail in respect of the nature of offences specified in sub-section (3) of section 437 Cr.P.C. or any other offences can also impose any of the conditions enumerated in sub-section (3), if it considers necessary but such Court not bound to impose all those conditions. No doubt the cash deposit in lieu of execution of a bond by the accused is an alternative system of granting bail and can be stated to be no less efficacious than granting bail of certain amount with or without surety or sureties of the like amount. In the cash deposit system, the cash is deposited right down and in the event of failure of accused to appear, the Court has the least trouble to realise as the amount is already in its custody. In the cash deposit system, the cash is deposited right down and in the event of failure of accused to appear, the Court has the least trouble to realise as the amount is already in its custody. In case of bail on personal bond of recognisance, the Court has to rely on the personal promise under bail with surety. In case of failure to appear on the part of the accused, the Court has power to realise the amount from the surety. Section 445 Cr.P.C. provides for taking of deposit instead of recognisance i.e. 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 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 executing such bond. Thus under this section 445 Cr.P.C., the Court has the discretion to allow the accused to deposit payment in cash or Government promissory notes, if he offers it when he is unable to produce sureties except when the bond is for good behaviour. This concession is however available only to the accused and not to the sureties. The discretionary power exercised by the Magistrate or the Court, as the case may be, under sections 441 Cr.P.C. and 445 Cr.P.C., is mutually exclusive and not concurrent. On the Court requiring a person to execute a personal bond with sureties or without sureties, it is at the option of the accused to furnish cash deposit in lieu of executing such bond that the Court may make an order under section 445 Cr.P.C. The order of bail should not be harsh and oppressive which would indirectly cause denial of bail thus depriving the person's individual liberty. 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 cash security is incorrect and indirectly results in denial of bail. The entire chapter of Cr.P.C. which deals with the provisions relating to bail nowhere says that when a person is released on bail, the Court can also insist upon him to give cash security. The entire chapter of Cr.P.C. which deals with the provisions relating to bail nowhere says that when a person is released on bail, the Court can also insist upon him to give cash security. The power has to be exercised in a proper and judicious manner and not in an arbitrary, capricious or whimsical manner and the discretion exercised shall appear to be just and reasonable one. It is the duty of the Court to see that any order to be passed or conditions to be imposed while granting bail shall always be in the interest of both the accused and the State. 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. As held in a catena of decisions, to determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the length of accused's residents in the community, his employment, status, history and his financial condition, his family ties and relationship, his reputation, character and monetary condition, his prior criminal record including any record or, prior release on recognizance or on bail, the identity of responsible members of the community who would vouch for his reliability, 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 any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear. While releasing the accused even 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 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. Insistence on furnishing cash security has not been approved by the Courts. Though in the absence of any specific prohibition or any statutory norm for exercise of judicial discretion in the matter of bail, it cannot be said that the Magistrate or Court, as the case may be, has no jurisdiction at all to impose cash security as a condition for bail. Such a condition has been held by the Apex Court and different High Courts to be harsh, oppressive and virtually amounting to denial of bail. From section 445 Cr.P.C., it can be reasonably inferred that it is not the mandate of the Code that the Magistrate should insist on cash security in addition to personal bond with or without sureties. Surety amount demand is dependent on several variable factors. Heavy amount should not be demanded as surety amount. Courts should be liberal in releasing poor or young or infirm persons and women on their own recognizance putting, however, reasonable conditions if necessary and permissible. The Magistrates 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. It would bring more harm to the justice delivery system than good. Every other feasible method of pre-trial release should be exhausted before resorting to monetary bail. Unless it is shown that there is substantial risk of non-appearance or there are circumstances justifying imposition of such conditions, the same should not be adhered to. It would bring more harm to the justice delivery system than good. Every other feasible method of pre-trial release should be exhausted before resorting to monetary bail. Unless it is shown that there is substantial risk of non-appearance or there are circumstances justifying imposition of such conditions, the same should not be adhered to. 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 on order to appear or on his own recognizance. There are very few people in this country who can furnish cash security for availing bail and, therefore, the Court while granting bail should as far as practicable avoid directing deposit of cash security as a condition. Only in exceptional cases where the Court thinks it proper to impose a condition for furnishing cash security, such order may be passed. 7. Judged in the aforesaid background, the direction to furnish cash security in addition to bail bond of other surety is clearly untenable. No reason has been assigned by the learned Sessions Judge. The offence is under section 379 IPC which carries maximum punishment for three years, or with fine, or with both. The offence is triable by any Magistrate. The allegation is commission of theft of a plastic bag of the informant from the handle of the cycle of the informant carrying cash of Rs. 30,000/-, I am of the view that the imposition of cash security is totally unwarranted and reflects gross abuse of power of judicial discretion. It is deplorable that even after the position relating to cash security has been elaborated by Apex Court and this Court, learned Sessions Judge without any basis and without application of judicial mind has directed the accused-petitioners to furnish cash security without any cogent reasons. Accordingly said condition No. (ii) is set aside. In the result, the CRLMA application is allowed and condition No. (ii) i.e., deposit of cash security of Rs. 20,000/- by each of the petitioners as was imposed by the learned Sessions Judge, Bhadrak vide order dated 15.7.2015 in BLAPL No. 1105 of 2015 is waived. All other conditions imposed by the learned Sessions Judge, Bhadrak remain unaltered.