TaxTMI 
TaxTMI 
2023 (5) TMI 1344
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....etitioners contend that the pre-trial incarceration would cause an irreversible injustice to the petitioners and family. Petitioner's counsel also seeks liberty to give alternatives to sureties and also that in case they want to relocate, then the conditions of bail bond should not become an impediment. 4. The State opposes bail. Complainant's counsel opposes the bail on the grounds that the petitioners are not entitled to bail on parity and are main accused. Reasoning : 5. Two of the co-accused have already been granted bail. The allegations also have a tinge of matrimonial discord, and the possibility of exaggerations cannot be ruled out. Even a primafacie perusal of the paragraph 5 of the bail petition refers to pendency of a petition filed under section 13 of the Hindu Marriage Act, 1955, filed by the complainant's son-in-law, i.e., the petitioners' son, needs consideration for bail. Apart from this, the petitioners 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 investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justic....
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.... exponential growth in technology encompassing every aspect of human lives across the globe has reached a cusp, where people would work from anywhere and might not consider having a permanent abode. Apart from them, for time immemorial, certain groups of homeless people, e.g., Saints, Sages, Vagabonds, and Nomadic tribes, never had a permanent settlement. Would asking these people about their permanent address not amount to grave injustice, and would it not be an insensitive and unjust demand? 10. Bail is a promise by the accused to the Court to attend the trial and comply with the conditions stipulated in the order. The accused accepts such a contract by furnishing bail bonds, and so do their sureties, undertaking to produce the accused before the concerned Court if they default to appear. Section 74 of the Indian Contract Act, 1972, provides compensation for breach of contract where a penalty is stipulated. The perfect insight is its illustration (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." 11. Analysis of law on financial securities in li....
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....shed. 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 under-trial cannot is a reductioadabsurdem. 12. Judicial precedents on s. 445 CrPC: (a). In Rajballam Singh v. Emperor, AIR 1943 Patna 375, Patna High Court observed:- "[2]. In this particular case and in others the District Magistrate has demanded a cash deposit as a condition 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 section contemplates is the furnishing of a personal bond by the accused person and a bond by one or more sufficient sureties. The accused as well as the sureties 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 respectfully agree with it. Section 513 provides for a concession to an accused person who is unable to produce sureties. Th....
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....eposit in lieu of execution of a bond by the accused is an alternative system of granting bail and can be stated to be no less efficacious than granting bail of certain amount with or without surety or sureties 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 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. After all, the object of granting bail is to see that the liberty of an individual is extended. Of course, when an accusation 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 whenever so required either by the Police or Court either for investigation or to take up trial. During this period the Court can also warn the accused of his activities or movements in any way causing a fear or resulting in tampering with the prosecution evidence. While the Court exercises its d....
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....cting a surety, to see the sureties 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 after arrest, this consideration is not lost sight of in the provisions of section 445 of the Code. It is only an enabling section, 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 executing 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 accepting the deposit of money in lieu of surety is left to the discretion 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 substitute a cash security. While considering the question of fitness, principal purpose of bail as underlined above, would always remain a paramount consideration. In short thus besides the question as to whether the accused can find sureties ....
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....hati High Court observed, [4]. After hearing the counsel for the parties 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 properties 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 Chittaranjan 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 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 ca....
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....has to direct execution of bail bond by the sureties in case if the release is not on his own bond. Only in lieu of that deposit of cash security could be directed (see Section 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 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 un....
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.... 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 pragmatic approach is that while granting bail with sureties, the "Court" and the "Arresting 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 creating a lien over his bank account. The accused should also have a further option to switch between the modes. The option lies with the accused to choose between the sureties and deposits and not with the Court or the arresting officer. (v). Reference to also made to Wan Chenghua Versus State of U.T., Chandigarh, [2023: PHHC:074430], of which this order is almost a replica. 13. From the survey of the judicial precedents mentioned above, the following fundamental principles of law relating to the choice of the accused to furnish surety bonds or secure recognizance by depositing a sum of money or Government promissory note....
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....national accused who cannot furnish a local surety is not debarred from being admitted 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 additional to personal bond with or without sureties. [Parades Patra v. State of Orissa, 1994 (1) Crimes (HC) 109, Para 10]. 14. 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 initially on furnishing cash bail and, thereafter, asking him to furnish solvent sureties in appropriate cases. 15. Section 445 CrPC mandates an accused to execute bonds by officers and Courts, with or without sureties. An officer directs an accused to execute bonds in bailable offenses or when the court issues Bailable Warrants or when such an accused is armed with an order of anticipatory bail. Section 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 executing the such bond. Thus, for S. 445 CrPC, the Legislature does not d....
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....tion 446 CrPC. 19. The social background in the light of which the requirement of sureties was ushered in is starkly in contrast to our present milieu. The concepts of solid individual identities, self-reliance, and globetrotting were obscure and had yet to evolve. There was a strong predilection for community involvement and obligations in all spheres of life. Sureties for bail established a legal relationship between the community member and the one undergoing criminal trial. The rationale was to shift the burden of responsibility from the lap of the law enforcement system to that of the community. The objective was to ensure that the rule of law is enforced by incarcerating the correct accused and not a person who might submit to law for various considerations, money, subordination, slavery, an obligation, a relationship, etc. 20. Over the years, various observations through courts and executive reports have brought to light the impracticalities and deficiencies of the practice. Illegal businesses providing sureties for large sums of money have flourished, and the menace has made the consideration of bail discriminatory and influenced by money power. In addition to that, there....
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....era when the knowledge revolution has just begun, to keep pace with exponential and unimaginable changes that technology has brought to human lives, it is only fitting that the dependence of the accused on surety is minimized by giving alternative options. Furthermore, there should be no insistence on providing permanent addresses when people either do not have permanent abodes or intend to relocate. 23. Given above, provided the petitioners are not required in any other case, the petitioners shall be released on bail in the FIR captioned above, in the following terms: (a). Petitioners to furnish personal bond of Rs. Ten thousand (INR 10,000/-) each; AND (b) To give one surety of Rs. 25,000 each (INR 25,000/-), to the satisfaction of the concerned investigator. Before accepting the surety, the concerned officer must satisfy that if the accused fails to appear in court, then such sureties can produce the accused before the court. OR (b) Petitioners to hand over the concerned investigator a fixed deposit for Rs. Ten thousand only (INR 10,000/-) each, with the clause of automatic renewal of the principal and the interest reverting to the linked account, made in favor of the '....