Iyyanar and Others vs State

P. Devadass, J—Petition for reduction of surety amount.

Petitioners are accused of having committed robbery. They have been jailed. They sought for bail.

On 3.2.2015, the learned Judicial Magistrate II, Thiruppur in Crl.M.P. No. 500 of 2015 granted them bail.

Taking note of the fact that the petitioners belongs to a different District, the learned Magistrate imposed the following conditions:

(1) There shall be two sureties, they and the petitioners shall execute a bond for Rs. 50,000/- each.

(2) They shall also produce a solvency certificate issued by an officer not below the rank of a Deputy Tahsildar;

(3) Out of the two sureties, one shall be related by blood.

(4) The other surety must be a person belonging to petitioners'' village.

(5) Petitioners shall also appear daily at 10 a.m. before the learned Magistrate;

Bail and bail bond provisions are codified in Chapter 33 of the New Code of 1973. Decoding the code relating to the bail bond, a thought provoking, mind touching judgment was delivered by the Hon''ble Supreme Court in Moti Ram and Others Vs. State of Madhya Pradesh, AIR 1978 SC 1594 : (1978) CriLJ 1703 : (1978) 4 SCC 47 : (1978) SCC(Cri) 485 : (1979) 1 SCR 335 : (1978) 10 UJ 747 .

The year 1978 really has to be heralded as a period denoting development of Indian human right jurisprudence. During this period, the judgment in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 : (1978) 1 SCC 248 : (1978) 2 SCR 621 was also delivered by the Indian Supreme Court. In Motiram (supra), the Hon''ble Supreme Court stated that a bail system should not be based on cash system. Surety amount cannot be prescribed indiscriminately, unreasonably for one''s liberation from cellular servitude.

Regardless of the financial capacity of a person, if heavy amount is fixed as surety, bailors will not be forthcoming. Consequently the accused will languish in jail. If a person has sufficient financial capacity, he will furnish the bond and come out. However, a poor man will continue in jail itself. This may happen even in the same case. For instance, in the same case, A1 may be rich and A2 may be poor. Even as per Section 440 of Cr.P.C., the bond amount should not be excessive.

In Menaka Gandhi''s case, the Hon''ble Supreme Court held that any ''procedure'' which affects the liberty of a person which is not fair, unreasonable and inequitable is against law. A procedure of fixing heavy and unreasonable surety amount regardless of capacity of the accused disables him from executing the bail bond. It militates against Article 21, Constitution of India and the principles laid down in Motiram (supra), Menaka Gandhi (supra) and Section 440 of Cr.P.C.

In Motiram (supra), the question of "roots in society" also has been considered. Pavement dwellers, roofless persons, beggars also becomes accused. Every verandahs and road sides are their roof. They used to sleep on the road side. On suspicion, very often they are being frisked away by the police and include them in some petty cases. If those persons were asked to produce property surety or the bailor (surety) is asked to execute bail bond for heavy amount, it is very difficulty for them to furnish the bail bonds. Consequently, they will remain in jail.

Imposition of unreasonable condition in a bail bond is now considered as a restriction on the right to life guaranteed in Article 21, Constitution of India. Imposition of unreasonable bail condition amounts to denial of justice. Imposition of the bail condition should not be in the nature of giving bail by one hand and taking it away by another hand. The conditions imposed by the court must be reasonable, fair, not oppressive. And it should not cause harassment. It must be performable, executable.

Now in this case, bail has been granted to the petitioners as early as on 3.2.2015. Till date, they could not execute the bail bond. It demonstrates their inability to satisfy the bail conditions, since they are very harsh.

Solvency certificate will be issued by the Tahsildar to those who are having property. Asking persons who are not having any property to produce solvency certificate is totally unjustified. Further, to such a persons, bailors also will not give solvency certificate.

In this case, directing the petitioners to furnish bail bond for Rs. 50,000/- is undoubtedly unreasonable and oppressive in nature. While granting bail, court has to consider the nature of the offence, but while fixing the bond amount, surety amount, the court must consider the individual''s financial condition. It must be an ''individualized decision''.

Instead of imposing this kind of "harsh" condition, the learned Magistrate could have denied them bail. In that event, they could have approached some higher forum, who could have applied his mind, law to the reality of the situation.

This court is totally dissatisfied with the bail conditions imposed in this case. They are unreasonable, uncalled for. Oppressive in nature. It exhibits total non application of mind. It is mechanical fashion of delivery of justice. It is against all cannons and notions of fair justice.

Ordered as under;

(1) In the circumstances, bail conditions imposed by the learned Judicial Magistrate, No. II Tiruppur are modified to the effect that there shall be two sureties, who shall execute bond for Rs. 5,000/- each to the satisfaction of the said Magistrate;

(2) petitioners shall appear before the said Magistrate on every Monday and Friday at 10.30 a.m. for two weeks.

(3) All other conditions are deleted.

Accordingly, this Criminal Original Petition is disposed of.