Shiv Shyam Pandey vs State of U.P. & Ors.

Heard Mr. B.L. Bhartiya, learned counsel for the applicant as well as Mr. R. P. Shukla, learned Additional Government Advocate.

Through the instant application, the applicant has prayed for issuing a direction to the opposite parties to release the applicant in pursuance of the order dated 2592008 passed in Criminal Misc. Case No. 5394 (B) of 2008. This Court by means of an order dated 2592008 parsed in Criminal Misc. Case No. 5394 (B) of 2008, provided that let applicant Shiv Shyam Pandey be enlarged on bail in crime No. 164 of 2008 under Section 8/22 of N.D.P.S. Act of Police Station Sahadatganj, district Lucknow on his furnishing an adequate personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

Learned counsel for the applicant submits that pursuant to the order passed by this Court, bail bond was submitted on 2092008 on behalf of the applicant before the Additional Chief Judicial Magistrate, Lucknow and from Tehsil, the verification has also been done but since the police report has not come, the petitioner has not been released on bail. Thus, he has raised the finger on the action of the police in the matter of verification for releasing the detenu from jail even after the order passed by this Court.

Learned counsel for the applicant invited the attention of this Court towards the circular dated 2081998 issued by the Registrar of this Court, through which this Court has issued some direction for strict compliance, which are as under :

"(A) In serious cases such as murder, dacoity and NDPS Acts the amount of surety bonds should normally be fixed for Rs. One Lac which will be covered by four sureties for the amount of Rs.25,000/ each.

(B) The address and status of these sureties must be verified. However, in appropriate cases provisional bail may be granted subject to the verification of the sureties.

(C) The Courts must insist for filing of the photograph prepared by the negative and refuse to accept a polaroid or coloured photograph.

(D) Copies of the title deeds filed in support of the solvency of the status should be verified.

(E) Police verification of the address and parentage of the sureties, be also obtained.

(F) In cases where the Court feels that there are chances of plantation of drug to implicate a person in a case in NDPS the amount of surety bond may be suitably reduced."

Subsequent circular is dated 5111998 issued in partial modification of the earlier circular dated 2091998, which has formulated following conditions for compliance :

"(A) In serious cases such as murder, dacoity, rape and cases under NDPS Act the amount of surety bonds are normally to be fixed at a heavy figure commensurate with the gravity of the offence in the case, covered by two sureties for the like amount.

(B) The address and status of these sureties must be verified. However, in appropriate cases provisional bail may be granted subject to the verification of the sureties.

(C) The Courts must insist for filing of the photograph prepared by the negative and refuse to accept a polaroid or coloured photograph.

(D) Copies of the title deeds filed, in support of the solvency of the status should be verified.

(E) Police verification of the address and parentage of the sureties be also obtained.

(F) In cases where the Court feels that there are chances of planting of drug to implicate a person in a case in NDPS the amount of surety bond may be suitably reduced."

Learned counsel for the petitioner placed reliance upon the judgment rendered in the case of Moti Ram and others v. State of Madhya Pradesh, AIR 1978 SC 1594. In this case, three legal issues arose for consideration by Hon''ble Supreme Court, which are reproduced as under:

Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond without sureties, a person undergoing incarceration for a nonbailable offence either as under trial or as convict who has appealed or sought special leave?

If the Court decides to grant bail with sureties, what criteria should guide it in quantifying the amount of bail, and

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?

The Hon''ble Supreme Court considered the opinion of a Committee consisting of Judges, Lawyers, Members of Parliament and other legal experts, came to the conclusion 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 recognisance 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 on 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 furnishing bail with sureties, as it will only compel him to be in custody with the consequent handicaps in making his defence".

The Hon''ble Supreme Court further observed that primarily Chapter XXXIII is the nidus of the law of bail. Section 436 of the Code speaks of bail but the proviso makes a contradistinction between ''bail'' and ''own bond without sureties''. Even here there is an ambiguity, because even the proviso comes in only if, as indicated in the substantive part, the accused in bailable offence ''is prepared, to give bail''. Here, ''bail'' suggests ''with or without sureties''. And, ''bail bond'' in Section 436 (2) covers own bond. S. 437 (2) blandly speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and women. It cannot be that a small boy or sinking invalid or pardanashin should be refused release and suffer stress and distress in prison unless sureties are haled into a faroff court with obligation for frequent appearance ''Bail'' there suggests release, the accent being on undertaking to appear when directed, not on the production of sureties. But Sec. 437 (2) distinguishes between bail and bond without sureties.

The Hon''ble Supreme Court further observed that ''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 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 right, 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.'' Even so, poor men Indians are, in monetary terms, indigents young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognizancesput whatever reasonable conditions you may.

The present case is a clear instance of misuse of power of the police as well as the learned Magistrate also as despite the order passed by this Court to release the accused on bail, till date he has not been released for want of verification and accordingly, it can be said that his detention has become unlawful being violative of Article 21 of the Constitution of India after a reasonable period, which can be utilised for verification. Therefore, I am of the view that a clear direction is required to be issued by this Court to the courts below on the subject of verification of sureties and bail bonds for releasing the detenu from jail. Therefore, the Registrar of this Court is requested to place the matter before the Hon''ble Chief Justice for reconsideration and issuing a clear direction to the courts below on the matter of verification of sureties and bail bonds so that after the order passed by this Court to release the detenue on bail, there may not be undue delay in releasing the accused from jail.

Keeping in view the delay in verification, the learned Magistrate is directed to release the detenu from jail on his personal brands subject to verification thereof.

The application is disposed of accordingly. "