Document Fragment View

Matching Fragments

[5]. The learned Counsel for the petitioner has relied upon the decisions of the Apex Court as, in the case of AIR 1978 Supreme Court 1594, Moti Ram and Ors. v. State of Madhya Pradesh as well as the decision of the Hon'ble Gauhati 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 granting bail dated 28.2.07 needs to be modified to the extent that instead of furnishing surety from a permanent resident of Dimapur having immovable properties, the accused be allowed to deposit cash surety or bank surety to such an amount as may deem fit and proper and to the satisfaction of the ADC (J), Dimapur, as provided under Section 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 condition that the accused shall report once a week before the Deputy Residential Commissioner, Nagaland House, Kolkata and upon reporting, the DRC, Nagaland House, Kolkata shall submits a report to the Superintendent of Police, Dimapur.

(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 Section 445Cr.P.C.). Even in fixing the cash surety, the amount should not be excessive. (See Section 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 discretionary power exercised by the Magistrate or the Court, as the case may be, under sections 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 sureties or without sureties, it is at the option of the accused to furnish cash deposit in lieu of executing such bond that the Court may make an order under section 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 granting bail, insisting on good behaviour or prompt attendance, executing personal bond, further to safeguard his good behaviour and personal attendance may be supported by insisting upon additional sureties as the Court deems fit but insisting upon cash security is incorrect and indirectly results in denial of bail. The entire chapter of Cr.P.C. which deals with the provisions relating 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 discretion 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 conditions to be imposed while granting bail shall always be in the interest of both the accused and the State.

(s). In Yan Hao v. State of Telangana, (Criminal Petition No. 1966 of 2021, decided on 23.3.2021), Telangana High Court permitted a Chinese national to furnish two cash sureties of Rs.10,000/- each apart from a personal bond amount of 11 of 16 Neutral Citation No:=2023:PHHC:074430 CRM-M-23610-2023 Wan v. Chandigarh similar amount.

(d). A reading of the entire chapter, which deals with the provisions relating 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 condition 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].