Karnataka High Court
Vasim Khan vs State By Devanahalli Ps on 28 March, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 6302 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 6302 OF 2023 (GM-POLICE)
BETWEEN:
VASIM KHAN,
S/O FAKIR MAUHMMAD,
AGED ABOUT 29 YEARS,
R/AT HOUSE NO.205,
SHERPUR BANGAR POST OFFICE,
ANUP SHAHR, SHERPUR BANGAR,
BULANDSHAHR,
UTTAR PRADESH - 202 390.
...PETITIONER
(BY SRI. MOHAMMED TAHIR, ADVOCATE)
AND:
STATE BY DEVANAHALLI PS.,
REPRESENTED BY GOVERNMENT PLEADER,
Digitally signed OFFICE AT ADVOCATE GENERAL OFFICE,
by PADMAVATHI
BK HIGH COURT COMPLEX,
Location: HIGH OPP. VIDHANA SOUDHA,
COURT OF BANGALORE - 560 001.
KARNATAKA
...RESPONDENT
(BY SRI.VINOD KUMAR M, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT TO
FACILITATE THE RELEASE OF PETITIONER BROTHER WITHOUT
AND ON THE BASIS OF LAND DOCUMENTS AND SALARY
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WP No. 6302 of 2023
CERTIFIED BY FOLLOWING THE APEX COURT JUDGMENT AT
ANNEXURE - D AND/OR AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking a direction to release the brother of the petitioner on the basis of certain land documents or to accept cash till the land documents get verified and release the petitioner, inter alia.
2. Heard Sri. Mohammed Tahir, learned counsel appearing for the petitioner and Sri. Vinod Kumar M. learned AGA appearing for the respondent.
3. The issue lies in a narrow compass. The brother of the petitioner one Haseen Khan gets embroiled in a crime in crime No.16/2021 for the offences punishable under Section 392 of the Indian Penal Code, is arrayed as accused No.5. The police after investigation have filed a charge sheet in the matter and the same is pending consideration before the competent Court in C.C.No.4066/2021. The brother of the petitioner - Haseen Khan/accused No.5 files an application -3- WP No. 6302 of 2023 before the learned Sessions Judge seeking enlargement on bail;
bail is granted and a direction to enlarge the petitioner is rendered on certain conditions. The order and the condition read as follows:
"ORDER The bail petition filed U/Sec. 437 of Cr.P.C. by accused No.4 and 5 is hereby allowed and accordingly released him on bail subject to execution of his personal bond for a sum of Rs.25,000/- along with one surety for like sum and subject to following:
CONDITIONS
1. Accused No.4 and 5 shall not commit an offence similar to the offence.
2. Accused No.4 and 5 shall not tamper the evidence against him and he shall not directly or indirectly make any inducement, threat or promise to the prosecution witnesses.
3. Accused No.4 and 5 shall attend the court on every date of hearing.
4. Accused No.4 and 5 shall co-operate with the I.O in investigation of this case.
5. Accused No.4 and 5 shall produced their Indentity proof.
To furnish surety by".
The bail is granted subject to the accused executing a personal bond for a sum of Rs.25,000/- along with one surety for the likesum. An application is filed under Section 445 of the Cr.P.C., before the concerned Court.
-4- WP No. 6302 of 2023The concerned Court on the application passes the following order:
"Case is taken today board.
Counsel for the accused no.5 files application U/s 445 of Cr.PC seeking deposit cash surety of Rs.25,000/-.
On gone through the records, it appears that this Court has been imposed condition while orders of bail application that accused shall furnish surety and execute personal bond of Rs.25,000/-. Thereafter the accused no.5 furnished surety on 03-03-2023 but the said surety is permanently residing at UP State and also documents placed by the surety which are pertaining to the UP State, therefore this Court has been directed the IO to verify the said documents furnished by the surety. Therefore at this stage without verifying surety documents mere cash deposit is not survived to release the accused no.5 on cash deposit as narrated in the application. Therefore application filed by the accused no.5 is hereby rejected.
Call on 10-04-2023."
The petitioner seeks that he would furnish cash surety of Rs.25,000/- in the light of the fact that the surety that is given is of the persons, who are permanently residing in Uttar Pradesh and it is this order that drives the petitioner to this Court in the subject petition.
4. Learned counsel for the petitioner submits that the order of the learned Magistrate is contrary to law; the surety -5- WP No. 6302 of 2023 should not be made so stringent that liberty of the accused is at stake. He would submit that the petitioner is ready to execute a bond for Rs.25,000/- for the time being. The learned counsel at this juncture, submits that he does not wish to press prayer 'B'
5. The learned Additional Government Advocate would submit that the property documents submitted by the petitioner for the value of Rs.25,000/- is being verified and without just verification, cash deposit also cannot be accepted.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the available material on record.
7. The afore-narrated facts are not in dispute. The accused No.5 is the brother of the petitioner, who is enlarged on bail subject to the aforesaid condition. The conditions are not able to be fulfilled and therefore, an application is filed under Section 445 of the Cr.P.C. contending that they would pay an amount of Rs.25,000/- subject to the verification of the surety documents. The Court does not accede to that request.
-6- WP No. 6302 of 2023Close to two months have passed by and the petitioner though he is ordered to be enlarged on bail, is in prison on the ground that the Authorities are still verifying the property documents of the petitioner, since the properties are situated in Uttar Pradesh.
8. The Apex Court in the case of Moti Ram v. State of Madhya Pradesh reported in (1978) 4 SCC 47, has held as follows:
"23. A semantic smog overlays the provisions of bail in the Code and prisoners' rights, when cast in ambiguous language become precarious. Where doubts arise the Gandhian talisman becomes a 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 yourself, if the step you contemplate is going to be of any use to him." Law, at the service of life, must respond interpretatively to raw realities and make for liberties.
24. Primarily Chapter XXXIII is the nidus of the law of bail. Section 436 of the Code speaks of bail but the proviso makes a contradistinction between 'bail' and 'own bond without sureties'. Even here there is an ambiguity, because even the proviso comes in only if, as indicated in the substantive part, the accused in a bailable offence 'is prepared to give bail'. Here, 'bail' suggests 'with or without sureties'. And, 'bail bond' in Section 436(2) covers own bond. Section 437(2) blandly speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and women. It cannot be that a small boy or sinking invalid or pardanashin should be refused release and -7- WP No. 6302 of 2023 suffer stress and distress in prison unless sureties are haled into a far-off court with obligation for frequent appearance: 'Bail' there suggests release, the accent being on undertaking to appear when directed, not on the production of sureties. But Section 437(2) distinguishes between bail and bond without sureties.
25. Section 445 suggests, especially read with the marginal note, that deposit of money will do duty for bond 'with or without sureties'. Section 441(1) of the Code may appear to be a stumbling block in the way of 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. 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 to attend at the appointed place. Section 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 Section 441(1) compels a contrary meaning.
26. Section 441(2) and (3) use the word 'bail' generically because the expression is intended to cover bond with or without sureties.
27. The slippery aspect is dispelled when we understand the import of Section 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 confinement, that he be released on bail, or on his own bond."-8- WP No. 6302 of 2023
The Court of appeal may release a convict on his own bond without sureties. 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 liberation, pro tempore without sureties while an undertrial cannot is a reductio ad absurdem.
28. Likewise, the Supreme Court's powers to enlarge 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 to be so, may theoretically be released on his own bond without sureties while a suspect, presumed to be innocent, cannot. Such a strange anomaly could not be, even though it is true that the Supreme Court exercises wider powers with greater circumspection.
29. The truth, perhaps, is 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 Gentium Lex -- Then and Now, 1799-1974, p. 7] "
30. If sureties are obligatory even for Juveniles, females and sickly accused while they can be dispensed with, after being found guilty, if during trial when the presence to instruct lawyers is more necessary, an accused must buy release only with sureties while at the appellate level, suretyship is expendable, there is unreasonable restriction on personal liberty with discrimination writ on the provisions. The hornet's nest of Part III need not be provoked if we read 'bail' to mean that it popularly does, and lexically and in American Jurisprudence is stated to mean viz. a generic -9- WP No. 6302 of 2023 expression used to describe judicial release from custodia juris. Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigents's rights, we hold that bail covers both -- release on one's own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables.
31. Even so, poor men -- Indians are, in monetary terms, indigents -- young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances -- put whatever reasonable conditions you may.
32. It shocks one's conscience to ask a mason like the petitioner to furnish sureties for Rs 10,000. The Magistrate must be given the benefit of doubt for not fully appreciating that our Constitution, enacted by 'We, the People of India', is meant for the butcher, the baker and the candlestick maker
-- shall we add, the bonded labour and pavement dweller.
Following the afore-said judgment of the Apex Court, the High Court at Madras in the case of SAKTHIVEL VS. THE STATE reported in (2015) 2 MadWN (Cri) 438, has held as "16. While imposing condition on an accused, the Court has to apply its judicial mind. It cannot be uniform irrespective of the rank, role and financial capacity of the accused. There shall not be mechanical application of mind. It must differ from case to case, person to even in the same case. It should be a judicial analysis of various relevant factors concerning the accused. It should be an individualised decision (See N.Sasikala v. The Enforcement Officer, Enforcement Directorate. Shastri Bhawan, Madras-6 (Crl.O.P.No.5718 of 1996 dated 24.9.2008)
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WP No. 6302 of 202317. For instance, even in the same case, some accused may be rich, some accused may be poor, some may be main accused and some may be just arrows. If similar condition is imposed on all the accused regardless of the aspects we have stated already. then it is not proper exercise of judicial mind.
18. It will be an unequal treatment. It will be against the principle of equality before law because equals only should be treated alike and not unequals. It is violative of Article 14, 21, Constitution of India and it will be unreasonable', 'unjust and 'inequitable' and it will thus militate against the principles laid down by the Hon'ble Supreme Court in Maneka Gandhi v. Union of India (A.IR. 1978 SC 597)
19. In spite of having obtained bail order on 7.1.2015 itself still accused Sakthivel is in jail. It indicates his inability to deposit Rs.3,00,000-. It is also the case of accused Ragupathy because he has no money to deposit such an amount and execute the bail bond.
20. This Court directed depositing of similar amount on certain co-accused, since they are Trustees, wealthy and are main accused in this case. The SLP was also preferred by them.
21. However, Sakthivel and Ragupathy are ordinary coolies. They are poor. They are not like the other accused. In the circumstances, the learned Principal Sessions Judge. Namakkal is not right in directing the petitioners also to deposit Rs.3,00,000/- each.
22. In view of the foregoings, this Court is of the view that the condition imposed on the petitioners are onerous and oppressive in nature.
23. In the circumstances, in the bail order of the learned Principal Sessions Judge, Namakkal, passed in CMP.No.1560 and in the anticipatory bail order passed in CMP.No.1564 of 2014 on 07.01.2015, the condition to deposit Rs.3,00,000/- is deleted. Other conditions remain unaltered."
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WP No. 6302 of 2023The Apex Court and the High Court at Madras clearly hold that insistence of a particular mode of surety cannot result in denial of liberty to a convict. Therefore, in the peculiar facts of this case, I deem it appropriate to direct the concerned Court to accept the cash of Rs.25,000/- as surety towards the release of the brother of the petitioner, which would be returnable after the verification of the documents relating to the landed property submitted by the petitioner, on a bond being furnished for the amount, as indicated hereinabove.
9. For the aforesaid reasons, the following:
ORDER
(i) The Writ Petition is disposed.
(ii) The concerned Court is directed to accept cash security of Rs.25,000/- towards the condition stipulated in the order granting bail.
(iii) On acceptance of the said surety, the brother of the petitioner, accused-Haseen Khan shall be enlarged on bail.
(iv) After the verification of the documents qua property is complete, the amount shall be
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returned to the petitioner in lieu of a personal bond for a sum of Rs.25,000/-.
(v) All other conditions in the order enlarging the accused on bail remain unaltered.
Sd/-
JUDGE JY CT:SN