Punjab-Haryana High Court
Madhu Tanwar And Anr vs State Of Punjab on 29 May, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:077618
CRM-M-27097-2023 2023:PHHC:077618
102 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-27097-2023
Date of Decision: 29.05.2023
Madhu Tanwar and Anr ...Pe oners
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Abhimanyu Singh, Advocate for the pe oners.
Mr. Harsimar Singh Si'a, DAG, Punjab.
Mr. Surender Pal, Advocte for the complainant.
****
ANOOP CHITKARA, J. (ORAL)
FIR No. Dated Police Sta2on Sec2ons 226 12.08.2022 City Kharar , District SAS 406,420,465,467,471,120-B IPC, Nagar (Mohali) 1860
1. The pe oners apprehending arrest in the FIR cap oned above, on the allega ons that at the me of the wedding of the complainant's daughter, they had also given a SUV in dowry to the son of the pe oners, and the said vehicle was sold by the pe oners and their accomplices by tampering with the hypotheca on documents, have come up before this Court under Sec on 438 CrPC seeking bail.
2. In paragraph 22 of the bail pe on, the accused declares that he has no criminal antecedents.
3. Pe oners' counsel prays for bail by imposing any stringent condi ons. The pe oners contend that the pre-trial incarcera on would cause an irreversible injus ce to the pe oners and family.
4. The State opposes bail. Complainant's counsel opposes the bail on the grounds that the pe oners are not en tled to bail on parity and are main accused. Reasoning :
5. Two of the co-accused have already been granted bail. The allega ons also have a nge of matrimonial discord, and the possibility of exaggera ons cannot be ruled out. Even a primafacie perusal of the paragraph 5 of the bail pe on refers to pendency of a pe on filed under sec on 13 of the Hindu Marriage Act,1955, filed by the complainant's son-in-law, i.e., the pe oners' son, needs considera on for bail. Apart from this, the 1 1 of 14 ::: Downloaded on - 30-05-2023 05:28:03 ::: Neutral Citation No:=2023:PHHC:077618 CRM-M-27097-2023 2023:PHHC:077618 pe oners are the first offenders, and one of the relevant factors would be to provide an opportunity to course correct.
6. The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce, can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal Versus State (NCT of Delhi), 2020: INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Sec on 438 of the Code, the Court is duty- bound to strike a balance between the individual's right to personal freedom and the right of inves ga on of the police. While exercising utmost restraint, the Court can impose condi ons countenancing its object as permissible under the law to ensure an uninterrupted and unhampered inves ga on.
7. Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe oners make a case for bail, subject to the following terms and condi ons, which shall be over and above the declara ons made in the bail pe on and the contents of the form of bail bonds prescribed in chapter XXXIII of CrPC, 1973.
8. In Wan Chenghua v. State of U.T. Chandigarh, [2023:PHHC:074430], CRM-M- 23610-2023, the pe oner before this court was a resident of People's Republic of China, and had no rela ves or community in India. This court was concerned with the situa on that if any stock surety is accepted, it would merely be a formality because if he fails to appear, then in such a situa on, the procured surety would not be able to produce the pe oner to a'end the trial or suffer the punishment if such a stage arises. In this background, the following legal proposi ons had arisen for delibera ons:
a). Once any accused is released on bail, how can it be ensured that they will face trial, and if they stop appearing before the trial court, their presence can s ll be procured?
b). Can a stock surety produce them before the trial court to a'end it?
c). Whether, in every case, as an alterna ve to furnishing surety, the accused be permi'ed on their request to either give a bank guarantee, block their account to the extent of surety, or electronically transfer the bond money in the account of the Court, or handover a fixed deposit made in favor of the Court?
9. The issue does not confine to the above but has another aspect. The exponen al growth in technology that has encompassed every aspect of human lives across the globe, 2 2 of 14 ::: Downloaded on - 30-05-2023 05:28:03 ::: Neutral Citation No:=2023:PHHC:077618 CRM-M-27097-2023 2023:PHHC:077618 has reached a cusp, where people would work from anywhere, and might not consider having a permanent abode. Apart from them, for me immemorial, certain groups of people, e.g., Saints, Sages, Vagabonds, Nomadic tribes, never had a permanent se'lement. Would asking these people about their permanent address not amount to grave injus ce and would it not be an insensi ve and unjust demand?
10. The exponen al growth in technology and ar ficial intelligence has transformed iden fica on techniques remarkably. Voice, gait, and facial recogni on are incredibly sophis cated and pervasive. Impersona on, as we know it tradi onally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jus ce, then in such cases, appropriate condi ons can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.
11. It is beyond cavil that the sole purpose of a surety bond is to ensure that whenever an accused evades a'ending the trial, their surety produces them before the court. The menace of securing sure es by payment is well known within the legal fraternity. Some unscrupulous elements have established a flourishing business by standing as surety, and they circumvent the steps taken and all the measures formulated to end the menace of stock sure es by taking advantage of the vulnerabili es in the system. There is no reliable data to establish the role of sure es in bringing fugi ves to jus ce, and the ground reality is that the sure es are happier to be compensated by the accused for their financial losses caused according to an ac on under sec on 446 CrPC.
12. Bail is a promise by the accused to the Court to a'end the trial and comply with the condi ons s pulated in the order. The accused accepts such a contract by furnishing bail bonds, and so do their sure es, undertaking to produce the accused before the concerned Court if they default to appear. Sec on 74 of the Indian Contract Act, 1972, provides compensa on for breach of contract where a penalty is s pulated. The perfect insight is its illustra on (c), which reads, "A' gives a recognizance binding him in a penalty of Rs. 500 to appear in Court on a certain day. He forfeits his recognizance. He is liable to pay the whole penalty."
13. Analysis of law on financial securi es in lieu of human sure es:
(a). In Pillappan @ Ravikumar v. State, 2018 LawSuit (Mad) 1475, Madras High Court observed, [15]. By virtue of Sec. 89 of the Code, the Court records the absence of the accused and issues a warrant to secure his presence. By his non appearance followed up with the act of the Court in issuing the non-
bailable warrant for securing his presence, the accused has prima facie breached the condi on of the bond. A bond is a contract 3 3 of 14 ::: Downloaded on - 30-05-2023 05:28:03 ::: Neutral Citation No:=2023:PHHC:077618 CRM-M-27097-2023 2023:PHHC:077618 between the accused and the State under which the accused has agreed to appear before the Court on the hearing dates and his sure es have assured the Court that they will ensure that the accused does not commit breach of the bond."
(b). In HussainaraKhatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81, a three-member bench of Supreme Court holds, [4]. ... If the court is sa sfied on a considera on of the relevant factors that the accused has his es in the community and there is no substan al risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the no ce of the court which go to show that having regard to the condi on and background of the accused his previous record and the nature and circumstances of the offence, there may be a substan al risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustra on), the court may not release the accused on his personal bond and may insist on bail with sure es....
(c). In Mo Ram v. State of M.P., (1978) 4 SCC 47, Supreme Court, aQer referring to the provision for suspension of sentence of those convicted by trial Courts, holds, [27]. The slippery aspect is dispelled when we understand the import of Sec on 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 wri ng, order that the execu on of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
The Court of appeal may release a convict on his own bond without sure es. Surely, it cannot be that an under-trial 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 libera!on pro tempore without sure!es while an under-trial cannot is a reduc!oadabsurdem.
14. Judicial precedents on s. 445 CrPC:
(a). In Rajballam Singh v. Emperor, AIR 1943 Patna 375, Patna High Court observed:-
"[2]. In this par cular case and in others the District Magistrate has demanded a cash deposit as a condi on to the release of the accused. That is not what the law contemplates or authorises."
(b). In R. R. Chari v. Emperor, 1948 AIR(All) 238, Allahabad High Court observed, [4]. The language of S. 499, Criminal P.C. makes it perfectly clear that what that sec on contemplates is the furnishing of a personal bond by the accused person and a bond by one or more sufficient sure es. The accused as well as the sure es have, therefore, to execute only bonds which are sufficient in the mind of the amount which he might have fixed. This is also the view taken by the Patna High Court in 1943 AIR(Pat) 375 and I respecSully agree with it. Sec on 513 provides for a concession to an accused person who is unable to produce sure es.
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That sec on also makes it clear that the Magistrate is not bound to accept cash, but may permit an accused person to deposit a sum of money in lieu of execu ng a personal and giving surety of some persons. That sec on, however, does not authorise a demand of cash by a Magistrate. Under these circumstances, even though an offer may have been made in this case by the counsel for the applicant, that offer was made aQer the Magistrate apparently had made up his mind to demand cash security. It will not be covered by the terms of S. 513, Criminal P.C. and the demand of cash security in this case was clearly illegal."
(c). In Niamat Khan v. Crown, 1949 LawSuit (Nag) 42, High Court of Nagpur observed, [4]. ... Even under Sec on 513, Criminal P.C (1898) the accused could only be asked to deposit the amount of security instead of execu ng a bond. This provision is meant for the benefit of the person who is required to execute a bond in case where he may not be able to find a surety....
(d). In State of Mysore v. H VenkataramaKotaiyah, 1968 CrLJ 696, Mysore High Court observed, [4]. Sec on 513, Criminal P.C. states that when any person is required by any Court or officer to execute a bond, with or without sure es, such Court or officer, may, except in the case of a 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 execu ng such bond. According to this sec on, if the accused wants to deposit any sum of money, it is open to the Court to accept the same. But the law does not empower the Court to insist on cash deposit to be made by the accused.
(e). In Krishna Kumar and others v. State of Karnataka, 1979 SCC OnLineKar 118, [3]. It is also clear that on the Court requiring a person to execute a personal bond with sure es or without sure es, it is at the op on of the accused persons to furnish cash deposit in lieu of the bond or sure es that the Court may make an order under Sec on 445. In the instant case, it is clear from the orders that the learned Magistrate has asked for securi es in all the forms available under both the sec ons which is impermissible.
(f). In Gokul Das v. The State of Assam,1981 CrLJ 229, Gauha High Court observed, [14]. From the relevant provisions of the Criminal Procedure Code, there is no doubt that cash deposit in lieu of execu on of a bond by the accused is an alterna ve system of gran ng bail and can be stated to be no less efficacious than gran ng bail of certain amount with or without surety or sure es of the like amount.
(g). In Afsar Khan v. State by Girinagar Police, Bangalore, 1992 Cr.LJ 1676, Karnataka High Court observed, [7]. A reading of the en re Chapter which deals with the provisions rela ng to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. AQer all, the object of gran ng bail is to see that the liberty of an individual is extended. Of course, when an accusa on is made against a person, in the event of his release, it is the duty of the Court to see that the interest of the State and the public is safeguarded. For that purpose, the Court is empowered to insist upon appearance of the accused 5 5 of 14 ::: Downloaded on - 30-05-2023 05:28:03 ::: Neutral Citation No:=2023:PHHC:077618 CRM-M-27097-2023 2023:PHHC:077618 whenever so required either by the Police or Court either for inves ga on or to take up trial. During this period the Court can also warn the accused of his ac vi es or movements in any way causing a fear or resul ng in tampering with the prosecu on evidence. While the Court exercises its discre on, whether it is under S. 437 or 438 or 439, it shall exercise the same properly and not in an arbitrary manner. The discre on exercised shall appear a just and reasonable one. It is true that no norms are prescribed to exercise the discre on. Merely because, norms are not prescribed for the Court to exercise discre on under Ss. 437, 438 or 439 that does not mean the discre on shall be leQ to the whims of the Court. Guiding principle shall be as indicated earlier with sound reasoning and in no way opposed to any other law. The Legislature has given this discre on to the Court keeping full faith in the system of administra on of jus ce. While administering jus ce; it is the duty of the Court to see that any order to be passed or condi ons to be imposed shall always be in the interest of both the accused and the State. The condi ons shall not be capricious. On the other hand, it shall be in the aid of giving effect to the very object behind the discre on.
(h). In Parades Patra v. State of Orissa, 1994 (1) Crimes (HC) 109 Orissa High Court observed:
[10]. ...From this it can be reasonably inferred that it is not the mandate of the Code that the Magistrate should insist on cash security addi onal to personal bond with or without sure es.
(i). In Charles Shobhraj v. State, 1996 (63) DLT 91, Delhi High Court observed, [6]. But then, all said and done, a few things need to be no ced. The object of requiring an accused to give security for his appearance in Court is not to secure the payment of money to the State, for that is a secondary considera on, but to secure the presence of a person facing trial. Thus the primary considera on is the personal element of the surety or sure es concerned as the Court expects the surety to see that the accused appears on the date fixed and also that the surety will take steps for geVng the accused arrested in case of any a'empt on the part of the accused to abscond or to avoid a'endance in Court. As observed by Alvorstone, Lord Chief Jus ce of England in King v. Porter, (1910) I KB 369, it is to the interest of the public that criminals should be brought to jus ce, and therefore that it should be made as difficult as possible for a criminal to abscond. Responsibility is fixed on the sure es to see that such a person does not escape. A duty is thus cast on the Court, in accep ng or rejec ng a surety, to see the sure es are solvent and persons of sufficient vigilance to secure the appearance and prevent the absconding of the accused.
[7]. The principal purpose of bail being to secure that the accused person will return for trial if he is released aQer arrest, this considera on is not lost sight of in the provisions of sec on 445 of the Code. It is only an enabling sec on, and provides that a Court or officer may permit a person to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of execu ng a bond except in cases where the bond is for good behaviour. Surely, we cannot and must not lose sight of the word "may" which indicates that accep ng the deposit of money in lieu of surety is leQ to the discre on of the Court and that consequently the acceptance of deposit of money is not obligatory and the relief is to be granted only where the Court thinks fit to subs tute a cash security. While considering the ques on of fitness, principal purpose of bail as underlined above, would always remain a 6 6 of 14 ::: Downloaded on - 30-05-2023 05:28:03 ::: Neutral Citation No:=2023:PHHC:077618 CRM-M-27097-2023 2023:PHHC:077618 paramount considera on. In short thus besides the ques on as to whether the accused can find sure es or not, the Court shall have to keep in mind the ques on as to whether the prisoner is likely to abscond or not and while medita ng on the last ques on the Court may take into account various factors concerning him like the nature and circumstances of the offence charged, the weight of the evidence against him, length of his residence in the community, his family es, employment, financial resources, character and mental condi on, his record of convic ons, reputa on, character and his records of appearance at Court proceedings or flight to avoid prosecu on or failure to appear at Court proceedings.
(j). In Alluvdin v. Inspector of Police, 2001 CrLJ 2672, Madras High Court observed, [3]. Sec on 441 Cr.P.C. reads that before any person is released on bail or released on his own bond, a bond for such sum of money as the Court thinks sufficient shall be executed by such person. Sec on 441 does not speak about deposit of any cash security. Only in certain con ngencies, where the accused is unable to secure sure es for his release, he is permi'ed to deposit a sum of money or Government promissory Note as the Court may fix in lieu of execu ng such bond, under Sec on 445, Cr.P.C.
(k). In Shokhista v. State, 2005 LawSuit (Del) 1316, Delhi High Court observed, [5]. ...The accused is a foreign na onal and is not able to furnish a local surety. The same does not debar her from being admi'ed to bail. The provision of local surety is nowhere men oned in the Code of Criminal Procedure and surety can be from any part of the country or without. In the present case, since the accused is a foreign na onal and is facing inves ga on under Sec ons 4, 5 and 8 of the I. T. P. Act and in view of the fact that the Pe oner is ready and willing to make a deposit in cash in lieu of the surety in addi on to a personal bond, I am of the opinion that the ends of jus ce would be met in permiVng her to do so. Consequently, I admit the Pe oner to bail on her furnishing a personal bond in the sum of Rs. 20,000/- and a cash deposit of the like amount in lieu of the surety to the sa sfac on of the Trial Court. The Pe oner shall not leave the country without prior permission of the trial court and shall deposit her pass-port with the trial court.
(l). In Srinjay Kumar Singh v. State of Nagaland, 2007(32) R.C.R.(Criminal) 516, Kohima Bench of Gauha High Court observed, [4]. AQer hearing the counsel for the par es at length and upon perusal of the bail order dated 28.2.07, I am of the considered opinion that the rider to furnish surety from a permanent resident of Dimapur having immovable proper es is too harsh as the accused is not a resident of Dimapur and it is not possible for him to obtain such a surety being a resident of Chi'aranjan in the District of Burdwan, West Bengal and also the rider to furnish local surety is tended to defeat the very order of bail.
[5]. The learned Counsel for the pe oner has relied upon the decisions of the Apex Court as, in the case of AIR 1978 Supreme Court 1594, Mo! Ram and Ors. v. State of Madhya Pradesh as well as the decision of the Hon'ble Gauha High Court in the case of Amit Kr. Jain v. State of Nagaland as reported in (2005) 2 GLT 161.
[6]. Considering the decisions rendered by the Apex Court and also on this Court, I am of the considered opinion that the order gran ng bail dated 28.2.07 needs to be modified to the extent that instead of furnishing surety from a permanent resident of Dimapur having 7 7 of 14 ::: Downloaded on - 30-05-2023 05:28:03 ::: Neutral Citation No:=2023:PHHC:077618 CRM-M-27097-2023 2023:PHHC:077618 immovable proper es, the accused be allowed to deposit cash surety or bank surety to such an amount as may deem fit and proper and to the sa sfac on of the ADC (J), Dimapur, as provided under Sec on 445 Cr.P.C. It is also directed that the Court below while passing fresh modified order of bail dated 28.2.07 shall also impose condi on that the accused shall report once a week before the Deputy Residen al Commissioner, Nagaland House, Kolkata and upon repor ng, the DRC, Nagaland House, Kolkata shall submits a report to the Superintendent of Police, Dimapur.
(m). In Maha Ahmad Yusuf v. State of U.P., 2015 (5) R.C.R.(Criminal) 13, Allahabad High Court observed, [6].....The cash deposit is equally efficacious as other system in view of Sec on 445 Cr.P.C.
(n). In Sakthivel v. The State, Crl.O.P.No.835 of 2015, Madras High Court observed, [15]. Either under Sec on 438, or under Sec on 437, 439 of Cr.P.C., it is not that the Courts have no power to impose such bail condi on. But the condi on should not be imposed for the sake of imposing condi on. It must have some objec ve. It must be reasonable. It should not be oppressive in nature. It should be performable, executable. In imposing condi on, the Court must take into account the individual's posi on, financial capacity and his role in the case.
(o). In Navaneetha Krishnan v. State, (2) MadWN (Cri) 53, Madras High Court observed, [17]. While gran ng bail, the Court can direct the accused to execute bail bond. As per Sec on 440 Cr.P.C., 1973 the bond amount should not be excessive. When a person so directed to execute the bond either with surety or without surety is not able to furnish the sure es, then under Sec on 445 Cr.P.C., 1973 he has the op on to offer cash security. But even then, it must be a reasonable amount. It should not be an arbitrary, excessive amount. It should not be in the nature of depriva on of grant of bail by fixing a heavy amount as surety amount. If heavy amount is directed to be deposited as cash security, the bailee/accused will not be in a posi on to comply it. If heavy amount is demanded from the surety, then the bailor will not be forthcoming. And 'haves' will go out, while 'have nots' will remain in jail.
[18]. Reading sec ons 440, 441 and 445Cr.P.C., 1973 together, it is clear that straightaway a Court cannot direct the accused to deposit cash security. First of all, the Court has to direct execu on of bail bond by the sure es in case if the release is not on his own bond. Only in lieu of that deposit of cash security could be directed (see Sec on 445Cr.P.C., 1973). Thus, the Court cannot straightaway direct the accused to deposit cash security.
(p). In Sagayam @ Devasagayam v. State, 2017(3) MLJ (Cri) 134, Madras High Court observed, [40]. Under the Code, there is provision for offering Cash surety (See Sec on 445Cr.P.C.). Even in fixing the cash surety, the amount should not be excessive. (See Sec on 440(1) Cr.P.C.). In the first instance, Court cannot demand Cash surety from the accused. The offer to make cash surety must come from the accused.
(q). In Endua @ Manoj Moharana v. State, 2018(72) Orissa Cri. R.611, Orissa High Court observed, [9]. The discre onary power exercised by the Magistrate or the Court, 8 8 of 14 ::: Downloaded on - 30-05-2023 05:28:03 ::: Neutral Citation No:=2023:PHHC:077618 CRM-M-27097-2023 2023:PHHC:077618 as the case may be, under sec ons 441 Cr.P.C., 1973 and 445 Cr.P.C., is mutually exclusive and not concurrent. On the Court requiring a person to execute a personal bond with sure es or without sure es, it is at the op on of the accused to furnish cash deposit in lieu of execu ng such bond that the Court may make an order under sec on 445 of Cr.P.C., 1973 [10]. 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 gran ng bail, insis ng on good behaviour or prompt a'endance, execu ng personal bond, further to safeguard his good behaviour and personal a'endance may be supported by insis ng upon addi onal sure es as the Court deems fit but insis ng upon cash security is incorrect and indirectly results in denial of bail. The en re chapter of Cr.P.C. which deals with the provisions rela ng 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 discre on 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 condi ons to be imposed while gran ng bail shall always be in the interest of both the accused and the State.
(r). In Ubaidulla v. State of Kerala, 2020:KER:27721 [PARA 5],(Crl. MC. No. 3400 of 2020, decided on 5-8-2020), Kerala High Court observed, (5).I find merit in the submissions made by the learned counsel for the pe oner. The very purpose of Sec on 445 Cr.P.C,, 1973 providing for deposit instead of recognizance, is to ensure that a person is not denied an opportunity to be enlarged on bail merely for the reason that he is unable to execute bond, with or without sure es. Sec on 445 Cr.P.C , 1973 provides for deposit of a sum of money or Government Promissory Note to such amount as the Court may fix in lieu of execu ng the bond.
(s). In Yan Hao v. State of Telangana, (Criminal Pe on No. 1966 of 2021, decided on 23.3.2021), Telangana High Court permi'ed a Chinese na onal to furnish two cash sure es of Rs.10,000/- each apart from a personal bond amount of similar amount.
(t). In David Morrison v. State of U'arakhand, 2021 (1) Crimes 230, U'arakhand High Court permi'ed to deposit the cash amount.
(u). In Abhishek Kumar Singh v. State of Himachal Pradesh, 2020 SCC Online HP 3296, the High Court of Himachal Pradesh analyzed the scope of furnishing fixed deposits in place of cash while gran ng bail under S. 439 CrPC to the accused with an op on to give a fixed deposit in place of surety. In Manish Lal Srivastava v. State of Himachal Pradesh, CrMP(M) 1734 of 2020, ICL 2020 (12) HP 496, the scope of deposits was analyzed under S. 438 CrPC. In Mahidul Sheikh v. State of Haryana, 2022:PHHC:003277 [Para 53], [Law Finder Doc Id # 1933969], this Court observed the pragma c approach is that while gran ng bail with sure es, the "Court" and the "Arres ng Officer" should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or crea ng a lien over his bank account. The accused should also have a further op on to switch between the modes. The op on lies with the accused to choose between the sure es and deposits and not with the Court or the arres ng officer.
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15. From the survey of the judicial precedents men oned above, the following fundamental principles of law rela ng to the choice of the accused to furnish surety bonds or secure recognizance by deposi ng a sum of money or Government promissory notes emerge:
(a). The object of requiring an accused to give security for his appearance in Court is not to secure the payment of money to the State. The principal purpose of bail is to secure that the accused person will return for trial if he is released aQer arrest;
this considera on is not lost sight of in the provisions of sec on 445 of the Code. [Charles Shobhraj v. State, 1996 (63) DLT 91, Para 6 & 7].
(b). The rider to furnish local surety is tended to defeat the very order of bail. [Srinjay Kumar Singh v. State of Nagaland, 2007(32) R.C.R.(Criminal) 516, Para 4].
(c). The discre onary power exercised by the Magistrate or the Court, as the case may be, under sec ons 441 CrPC, 1973 and 445 CrPC, is mutually exclusive and not concurrent. [Endua @ Manoj Moharana v. State, 2018(72) Orissa Cri. R.611, Para 9].
(d). A reading of the en re chapter, which deals with the provisions rela ng to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. [Afsar Khan v. State by Girinagar Police, Bangalore, 1992 Cr.LJ 1676 (7), Para 7].
(e). The Court cannot demand a cash deposit as a condi on of bail. [Rajballam Singh v. Emperor, AIR 1943 Patna 375, Para 2].
(f). The offer to make cash surety must come from the accused. [Sagayam @ Devasagayam v. State, 2017(3) MLJ (Cri) 134, Para 40].
(g). If the accused wants to deposit any sum of money, it is open to the Court to accept the same. [State of Mysore v. H VenkataramaKotaiyah, 1968 CrLJ 696, Para 4].
(h). The Magistrate is not bound to accept cash but may permit an accused person to deposit a sum of money. [R. R. Chari v. Emperor, 1948 AIR(All) 238, Para 4].
(i). Cash deposit instead of execu on of a bond by the accused is an alterna ve system of gran ng bail and can be stated to be no less efficacious than gran ng bail of a certain amount with or without surety or sure es of the like amount. [Gokul Das v. The State of Assam, 1981 CrLJ 229, Para 14].
(j). The cash deposit is equally efficacious as other systems because of Sec on 445 CrPC. [Maha Ahmad Yusuf v. State of U.P., 2015 (5) R.C.R.(Criminal) 13, Para 6].
(k). This provision is meant to benefit the person who is required to execute a bond in a case where he may not be able to find a surety. [Niamat Khan v. Crown, 1949 LawSuit (Nag) 42, Para 4].
(l). The foreign na onal accused who cannot furnish a local surety is not debarred from being admi'ed to bail. [Shokhista v. State, 2005 LawSuit (Del) 1316, Para 5].
(m). It is not the mandate of the Code that the Magistrate should insist on cash security addi onal to personal bond with or without sure es. [Parades Patra v. State of Orissa, 1994 (1) Crimes (HC) 109, Para 10].
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16. In Sajal Kumar Mitra v. State of Maharastra, 2011 CrLJ 2744, High Court of Bombay observed, [10]. In my view, the learned Magistrates have power to release the accused on bail ini ally on furnishing cash bail and, thereaQer, asking him to furnish solvent sure es in appropriate cases.
17. Sec on 445 CrPC mandates an accused to execute bonds by officers and Courts, with or without sure es. An officer directs an accused to execute bonds only when the Court issues Bailable Warrants or when such officer arrests an accused in a bailable offence, or arrests in a non-bailable offence and when such an accused is armed with an order of an cipatory bail. Sec on 445 CrPC further provides that the court or such officer may permit the accused to deposit a sum of money or Government promissory notes of such amount, instead of execu ng such bond. Thus, for S. 445 CrPC, the Legislature does not dis nguish Officers from Courts. Further, even the legislature had made fleeing from jus ce a penal offense under sec on 174-A of IPC.
18. In an cipatory bail, the surety bail bonds have to be to the sa sfac on of the Inves gator/Arres ng Officer, and the financial instruments for security must be drawn up in the name of the concerned Chief Judicial Magistrate. In regular bail and suspension of sentence applica ons, the surety bonds must sa sfy the said court, the trial court, or the available Ilaqua Magistrate. In appeals and revisions, the higher Courts ask a convict or an accused to furnish bonds under sec ons 389, 390, and 397 CrPC. The provisions contained in Chapter XXXIII of CrPC apply to all bails and bonds. Thus, S. 445 CrPC applies to all bails, including those granted under sec ons 389, 390, 397, 436, 437, 438, and 439 CrPC. The similarity between Sec ons 436 to 439 of the CrPC is that all these relate to bail, whether by an officer empowered to release on bail in bailable offenses or release under bail granted by Courts. Furthermore, S. 445 CrPC provides for deposi ng a sum of money or Government promissory notes in all bonds except the case of a bond for good behavior.
19. There is an absence of comprehensive data demonstra ng the role of sure es in bringing the accused to jus ce. It is also true that the purpose of a cash bond is not to enrich the State's coffers but to secure the accused's presence. Mere recovery of the surety amount by penalty is not equivalent to producing the accused to face trial.
20. The social background in the light of which the requirement of sure es was ushered in is starkly in contrast to our present milieu. The concepts of solid individual iden es, self-reliance, and globetroVng were obscure and had yet to evolve. There was a strong predilec on for community involvement and obliga ons in all spheres of life. Sure es for bail established a legal rela onship between the community member and the one undergoing criminal trial. The ra onale was to shiQ the burden of responsibility from the lap of the law enforcement system to that of the community. The objec ve was to ensure 11 11 of 14 ::: Downloaded on - 30-05-2023 05:28:03 ::: Neutral Citation No:=2023:PHHC:077618 CRM-M-27097-2023 2023:PHHC:077618 that the rule of law is enforced by incarcera ng the correct accused and not a person who might submit to law for various considera ons, money, subordina on, slavery, an obliga on, a rela onship etc. Over the years, various observa ons through courts and execu ve reports have brought to light the imprac cali es and deficiencies of the prac ce. Illegal businesses providing sure es for large sums of money have flourished, and the menace has made the considera on of bail discriminatory and influenced by money power. In addi on to that, there has been a paradigm shiQ in the social seVng. Stronger individual iden es have emerged and even been codified through Government ini a ves. Biometric iden fica on tool (AADHAR) for welfare deliverance and preven ng duplicity has provided a universal iden ty to each resident of India and even a visitor. Linking of PAN, bank accounts, telecom, and other private services that an individual avails in their rou ne lives have reduced tremendously the reliance on persons adjacent or proximate to the individual to iden fy them and ensure the compliance to their obliga ons correctly. Furthermore, ci zens are constantly on the move, and territorial boundaries and dis nc ons are not holding back their pursuit of lives. Further, equipped with a database of ci zens, the governments are already proposing social plans of Universal Basic Income (UBI), direct bank transfers of grants, and the requirement of smartphone-based apps, credit cards, and pre-paid cards to aid equitable distribu on. A mul tude of financial instruments, blocking of requisite amount in the bank account connected to the individual, fixed deposits, payment through UPI interface, etc., can also ensure ease and be'er compliance. It will likely improve the possibility of the accused's a'endance because they would know their money is safe and accruing interest and the failure to appear shall lead to the immediate forfeiture of the money. It is further likely to mo vate them to refrain from defaul ng even once. In contrast, the risk of losing money handed over by cash to stock sure es is enormous. There needs to be more assurance or likelihood of the refund of money taken by a stock surety.
21. In this era when the knowledge revolu on has just begun, to keep pace with exponen al and unimaginable changes the technology has brought to human lives, it is only fiVng that the dependence of the accused on surety is minimized by giving alterna ve op ons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate.
22. Given above, provided the pe oners are not required in any other case, the pe oners shall be released on bail in the FIR cap oned above, in the following terms:
(a). Pe oners to furnish personal bond of Rs. Twenty five thousand (INR 25,000/-) each; AND
(b) To give one surety of Rs. One Lac each (INR 100,000/-), to the sa sfac on of the concerned court, and in case of non-availability, any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned court must sa sfy that if the accused fails to appear in court, then such sure es can produce the accused before the court.12
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(b) Pe oners to hand over to the concerned court a fixed deposit for Rs. Ten thousand only (INR 10,000/-) each, with the clause of automa c renewal of the principal and the interest rever ng to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district, or blocking a bank account in similar terms. Said fixed deposit or blocking funds can from any of the banks where the stake of the State is more than 50% or any of the well-established and stable private sector banks. The fixed deposit need not necessarily be made from the pe oner's account. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the pe oners to prepare an account payee demand draQ favouring concerned Chief Judicial Magistrate for the similar amount.
(c). Such court shall have a lien over the funds un l the case's closure or discharged by subs tu on, or up to the expiry of the period men oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(d). The pe oners are to also execute a bond for a'endance in the concerned court(s) as and when asked to do so. The presenta on of the personal bond shall be deemed acceptance of the declara ons made in the bail pe on and all other s pula ons, terms, and condi ons of sec on 438(2) of the Code of Criminal Procedure, 1973, and of this bail order.
(e). While furnishing personal bond, the pe oners/applicants shall men on the following personal iden fica on details:
1. AADHAR number [In case of the residents of India]
2. Passport number [In case of foreign na onals]
3. Passport number of an Indian ci zen, (If available), when the a'es ng officer/court deems appropriate or considers the accused as a flight risk.
4. Mobile number (If available)
5. E-Mail id (If available)
23. The pe oners shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
24. The bail bonds shall remain in force throughout the trial and aQer that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.13
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25. Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
26. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
27. There would be no need for a cer!fied copy of this order for furnishing bonds, and any Advocate for the Pe!!oner can download this order along with case status from the official web page of this Court and a9est it to be a true copy. In case the a9es!ng officer wants to verify the authen!city, such an officer can also verify its authen!city and may download and use the downloaded copy for a9es!ng bonds.
Pe22on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
29.05.2023
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: YES.
Neutral Citation No:=2023:PHHC:077618
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