MOTI RAM & Ors. v. STATE OF M.P

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 G H [The Court left open to the ·Parliament to consider whether in our socialist republic with social justice as its hallmark, monetary :supersti~ .. MOTi RAM v. M.P. STATE (Krishna Iyer, !.) 337 tion, not other relevant consideration like family ties, roots 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 to sleep under bridges, to beg KRISH~A IYER, J.-"The law. in its majestic equality, forbids the rich as well as the poor 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. inegality If mason and millionaire were treated alike, egregious is an inevitability. Likewise, geographic allergy at the judicial 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. A B c D E F G When this Court's order for release was thus frustrated by H magisterial intransigence the prisoner moved this Court again modify the original order "to the extent that petitioner be released A B D E F 338 SUPREME COURT REPORTS [1979) 1 S.C.R. on furnishing surety to the tune of Rs. 2,0001- or on executing a this Hon'ble personal bond or pass any other order or direction as Court may deem fit and proper". From this factual matrix 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 under trial 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 de nizens from the far corners od' our country with its vast diversity. In fact the grant of bail can be stultified or made impossibly in convenient 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 in decoding the Code and its pro Democracy to assist the Court visions regarding bail. The Kerala State Bar Federation was per mitted to intervene and counsel for the parties also made sub m1ss1ons. We record our appreciation of the amid curiae for their services and proceed to discuss the triple issues formulated above. It is a sombre reflection 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 that many Jittlo to be examined now. Indians are forced into long cellular servitude for little offences be cause 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 rights in iin from a wider perspective bearing in mind prisoner's H • Jnstic.:e V. R. Krishna Iyer. " 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 Maneka Gandhi.(') connotation • Before we turn to the provisions of the Code and dwell on the text of the Sections we may as well remember what Justice Frank furter 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 expres sion 'baiY given in the American Jurisprndence (2nd Edn. Vol. 8, Art. 2, p. 783) : "The term 'bail bond' and 'recognizance' are used inter changeably 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, 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 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 In medieval England, roots in English and American law. 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 -- -- ---·· - {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. A B c D E F G H 340 SUPREME COURT REPORTS [1979] 1 S.C.R. their own choosing who accepted responsibility for assnring If the accused did not appeal, his their appearance at trial. 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 receives a cash through a commercial bondsman who service, and usually demands some col premium for his lateral 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 then, the bonds cling to it ! Of course, in the United States, since !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 luminaries shared the view tha:t bail reform was necessary. Indeed, this legislative scenario has a lesson for India where a much later left untouched ancient Criminal Procedure Code 1973 has provisions on this subject, incongruous with the Preamble to Constitution. largely An aside. Hopefully, one wishes that socio-legal research pro jects 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 be based. (I) Vera Institute of Justice Ten-year Rerort 1961-71 p. 20. B c D E F G H >- • .. ' -( •• 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 per In short, risk of financial loss cent failed to appear when required. 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 preparatiJn of his defence. Equally important, the burden of hist detention frequently falls heavily on the innocent members of his family. from contributing 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 1966 certain observations at the signing ceremony : "Today, we join to recognize a major development in our system of criminal justice : the reform of the bail sys tem. This system has endured-archaic, unjust and virtually un examined-since the Judiciary Act of 1789. A B c D E The principal purpose of bail is to insure that an accused person F will return for trial if he is released after arrest. How is that purpose met under the present system ? The defen dant with means can afford to pay bail. He can afford to buy his free dom. But the poorer defendant cannot pay Jhe price He lang uishes 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) G H A B c D E F G 342 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 from which we of Criminal Procedure. The Gujarat Committee quote extensively, dealt with this matter in depth : in the '"The bail system, as we see it administered criminal courts to-day, is extremely unsatisfactory In the first place it is virtually im needs drastic change. possible to translate risk of non-appearance by the accused into precise monetary terms and even its basic premise that accused risk of financial loss is necessary to prevent the from fleeing is of doubtful validity. several There are considerations which deter an accused from running away from justice and risk of financial loss is only one of The experience of en and that too not a major one. lightened Bail Projects in the United States such as Man hattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure presence of the accused at the trial in quite a large number of cases. Moreover, system causes discrimi the bail nation 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 majo rity 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 accus ed 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 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 .. • ' "'· 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 oppor tunity to work to support himself and his family with the result that burden of his detention falls heavily on the in nocent members of the family, (3) he is prevented 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 free dom pending trial. Some courts now give special consider ation to indigent accused persons who, because of their community standing and past history, are considered likely to appear in court.'' ( 2 ) against "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 flight. The Magistrate must abandon deterrents the antiquated concept under which pre-trial release could be ordered only against monetary bail. That concept is out-dated and experience has shown 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 re gard to pre-trial release. Every other feasible method of - - --- (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. A c D E F G H • .. \ .. 344 SUPREME COURT REPORTS [ 1979J I S.C.R. pre-trial release should be exhausted before resorting 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 non appearance 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 com munity and is not likely to abscond, he can safely release the accused 011 order to appear or on his own recogni- zance ...... "(') (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 re lease without monetary sureties or financial security and release on one's own recognizance with punishment provid ed 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 ) A B c D E F 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. 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 In that sense, a consideration of the q;estion Court Rules discloses. (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. H • • " , 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 circum stances 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 pre talisman becomes a carions. Where doubts arise the Ga.ndhian tool of interpretation : "Whenever you are in doubt. ... apply following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yQUrself, if the step you contem plate is going to be of any nse of him." Law, at the service of life, must respond interpretatively to raw realities and make liberties. A B c D • Primarily Chapter XXXIII is the nidus of the law of bail. Sec. 436 of the Code speaks of bail but the proviso makes a contradistin ction 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 sure bond. Sec. 'bail bond' in Sec. 436(2) covers own ties'. And, 437 (2) blandly speaks of bail hut speaks of release on bail of per sons below 16 years of age, sick or infinn 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 nnless sureties are haled into a far'off court with obligation for frequent appearance ! 'Bail' there suggests release, the accent being on un dertaking to appear when directed, not on th" productiou of snre ties. But Sec. 437(2) distinguishes between bail and bond with ont sureties. F G Sec. 445 suggests, especially read with the marginal note, 'with or without sureties. deposit of money will do duty for bond 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 H -{ • • \ - A B 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, 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 confine ment, 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. 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. It is not the court's status but 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 sure ties 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) • c D • E F G H MOTi RAM v. M.P. STATE (Krishna Iyer, J.) 347 juveniles, lf sureties arc obligatory even for 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 neces sary, an accused must buy release only with sureties while at the appellate level. suretyship is expendable, there is unreasonable res triction on personal liberty with discrimination writ on the provi sions. The hornet's nest of Part III need not be provoked ii we lexically and m read 'bail' to mean that it popularly does, and American J nrisprudencc is stated to mean, viz., a generic expression used to describe judicial release 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. from custodia iuris. Bearing 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, enact- 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 pavc- 111cnt d\\1cller. E 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 alleg- ed misappropriation or theft or criminal trespass in Bastar, Port Blair. Pahalga!l'c vf Chandni Chowk '' He cannot ha;c sureties owning pro perties 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 from outside or non-regional language What law prescribes sureties 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 to inhibit the process of making Indians aliens in their own home land. Swaraj is made of united stuff. B 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. ;'"--"' ;;.; f· ~ • • • • « ;