MOTI RAM & ORS. v. STATE OF M.P.
Citation: [1979] 1 S.C.R. 335; 1978 INSC 143
Court: Supreme Court of India
Bench: V.R. KRISHNA IYER , D.A. DESAI
Judgment date:
Case summary
1978 INSC 143. Supreme Court of India judgment dated 1978-08-24. MOTI RAM & ORS. v. STATE OF M.P. Read the judgment and case details on LawSphereX.
Judgment text
MOTI RAM & ORS. v. STATE OF M. P. August 24, 1978 (V. R. KRISHNA ! YER AND D. A. DESAI, JJ. ) 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 petitioner-a. 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 per-sonill 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 the Jittleman in peril of losing his liberty is the consumer of social justice. And 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 necessi-tates 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 (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] [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 pro te111pore without sureties while an undertrial cannot, is a reductio ad absur-dum. (346 D-E] (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 -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 col-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 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 be-based. (I) Vera Institute of Justice Ten-year Rerort 1961-71 p. 20. 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 and research had legislative response and the Bail Reforms Act, 1966 · came into being. The then President, Lyndon B. Johnson made 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 system. This system has endured-archaic, unjust and virtually un-examined-since the Judiciary Act of 1789. The principal purpose of bail is to insure that an accused person 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 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) 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 im-possible 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 en-lightened 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 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 to incur debts to make payment to them for securing his ' "'· ff 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 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 ll 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 2 to appear in court. '' ( ) "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 .. -- --- (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. 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 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 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 2 the consequent handicaps in making his defence. "( ) 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 , 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 pre-carions. Where doubts arise the Ga. ndhian talisman becomes 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 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 for liberties. 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 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- • ties'. 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· 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 snreties. But Sec. 437(2) distinguishes between bail and bond with-ont 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 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 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. 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 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) 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.
Even so, poor n1en-Indians are, in n1onetary tern1s, indigents young persons, infirm individuals and won1en are weak categories anL1 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- 1 111cnt d\\ cller. To add insult to injury, the magistrate has demanded sureties from • his own distr'. ct: (We assume' the allegation in the petition). What is 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. 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, 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. 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 • f· to inhibit the process of making Indians aliens in their own home- ~ land. 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 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 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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