TaxTMI 
TaxTMI 
2024 (10) TMI 1663
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....24 in BAIL APPLN. 4056/2023 CRL.M.A. 18124/2024 in BAIL APPLN. 632/2022 By way of the present applications filed under sections 441 and 445 read with section 482 of the Code of Criminal Procedure 1973 ('Cr.P.C.') and Article 226 of the Constitution of India, the petitioners/applicants seek modification of the conditions imposed upon them for grant of regular bail. The petitioners have not availed the bail so granted till date; and it is their contention that they have been unable to do so, since they are not in a position to fulfil the conditions imposed by the court in their respective bail orders, for the reasons explained in the applications. The petitioners are both Nigerian nationals and it is the contention of the State that both petitioners had entered India on visas, which have run-out a long time ago and that the petitioners have overstayed the term of their visas and are therefore presently illegal residents in India. 2. By way of the present applications, the petitioners have sought modification of the conditions of bail on two counts : firstly, the petitioners have sought reduction in the amount of personal bond that they were required to furnish; and secondly,....
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....ssport stood extended upto 24.05.2023, which is not the case. PETITIONER - OSCAR ENYI 6. Similarly, the petitioner in BAIL APPLN. No. 623/2022 - Oscar Enyi - was granted bail vide order dated 26.09.2023; and while admitting him to regular bail the Predecessor Bench had directed him inter-alia to furnish a personal bond in the sum of Rs. 1,00,000/- with 02 sureties in the like amount to the satisfaction of the learned Trial Court. Furthermore, vide order dated 09.02.2024 passed by the Predecessor Bench in CRL. MA. No. 640/2024, this court modified the bail conditions in order dated 26.09.2023 to the extent that the petitioner Enyi could be released on bail on his furnishing a personal bond in the sum of Rs. 1,00,000/- with 01 surety in the like amount. By way of CRL. M.A. No. 18124/2024, petitioner Enyi has sought modification of the bail conditions on two counts : firstly, the petitioner prays that the amount of personal bond and surety bond stipulated in orders dated 26.09.2023 and 09.02.2024 be reduced from Rs. 1,00,000/- to Rs. 25,000/-; and secondly, he seeks that he be released on depositing cash in court in lieu of furnishing a surety bond from any person. 7. In Stat....
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....o produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law, and he will then be imprisoned...." "21. In Sunil Fulchand Shah v. Union of India [(2000) 3 SCC 409 : 2000 SCC (Cri) 659] Dr A.S. Anand, learned Chief Justice, in his concurring opinion, observed: (SCC pp. 429-30, para 24) "24. ... Bail is well understood in criminal jurisprudence and Chapter 33 of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety." (emphasis supplied) 10. This court had therefore observed that in view the foregoing fundamental principle, a p....
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....a M. John, learned senior counsel who is assisting the court as Amicus Curiae; Mr. Lakshay Yadav, learned counsel appearing for the petitioners; as also Mr. Amit Tiwari, learned Central Government Standing Counsel appearing on behalf of the FRRO. 15. The court has also considered the contents of the applications; written submissions filed on behalf of the learned Amicus Curiae as well as Status Report dated 12.08.2024 and the brief note filed on behalf of the FRRO. 16. In brief, Ms. John submits that in law, it is permissible for a court to waive the requirement of a prisoner furnishing surety as a condition for grant of bail; and it is also permissible, in an appropriate case, for a court to accept cash in lieu of surety but whether that is to be done in respect of a given prisoner is always in the discretion of the court. 17. To substantiate this submission, learned senior counsel has drawn the attention of this court to section 445 of the Cr.P.C. as well as to Form 45 appearing in Schedule-II to the Cr.P.C., which are relevant to the issue of deposit of cash in lieu of surety for admitting a person to bail, or for granting suspension of sentence. Section 445 and Form 45....
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....dents, which shed light on the queries framed in the present matter. The relevant portions of the precedents cited, are extracted below : 19.1. Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs. Union of India (1994) 6 SCC 731: "15. But the main reason which motivated the Supreme Court Legal Aid Society to file this petition under Article 32 of the Constitution was the delay in the disposal of cases under the Act involving foreigners. The reliefs claimed included a direction to treat further detention of foreigners, who were languishing in jails as undertrials under the Act for a period exceeding two years, as void or in any case they be released on bail and it was further submitted by counsel that their cases be given priority over others. When the petition came up for admission it was pointed out to counsel that such an invidious distinction between similarly situate undertrials who are citizens of this country and who are foreigners may not be permissible under the Constitution and even if priority is accorded to the cases of foreigners it may have the effect of foreigners being permitted to jump the queue and slide down cases of citizens even ....
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.... satisfied before a person accused of an offence under the Act can be released. ..... The offences under the Act are grave and, therefore, we are not inclined to agree with the submission of the learned counsel for the petitioner that we should quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable time. Alternatively he contended that such accused persons whose trials have been delayed beyond reasonable time and are likely to be further delayed should be released on bail on such terms as this Court considers appropriate to impose. This suggestion commends to us ... ... We, therefore, direct as under: (i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two ....
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.... accused persons who are, in the opinion of the learned Special Judge, for reasons to be stated in writing, likely to tamper with evidence or influence the prosecution witnesses; (iv) in the case of undertrial accused who are foreigners, the Special Judge shall, besides impounding their passports, insist on a certificate of assurance from the Embassy/High Commission of the country to which the foreigner-accused belongs, that the said accused shall not leave the country and shall appear before the Special Court as and when required; (v) the undertrial accused shall not leave the area in relation to which the Special Court is constituted except with the permission of the learned Special Judge; (vi) the undertrial accused may furnish bail by depositing cash equal to the bail amount; (vii) the Special Judge will be at liberty to cancel bail if any of the above conditions are violated or a case for cancellation of bail is otherwise made out; and (viii) after the release of the undertrial accused pursuant to this order, the cases of those undertrials who have not been released and are in jail will be accorded priority and the Special Court wil....
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....ed should cooperate with the investigation when bail is granted before filing the final report or chargesheet. Cooperating with the investigation does not mean that the accused must confess. The conditions incorporated in the order granting bail must be within the four corners of Section 437(3). The bail conditions must be consistent with the object of imposing conditions. While imposing bail conditions, the Constitutional rights of an accused, who is ordered to be released on bail, can be curtailed only to the minimum extent required. Even an accused convicted by a competent Court and undergoing a sentence in prison is not deprived of all his rights guaranteed by Article 21 of the Constitution......" (emphasis supplied) 19.3. Ajay Verma vs. Govt. of NCT of Delhi Order dated 15.12.2017 passed in W.P.(C) 10689/2017 by a Division Bench of this court. "2. Mr. Verma's petition brings to the fore an unfortunate aspect of criminal law. It has been complained by the petitioner that a large number of under-trial prisoners are languishing in jail despite bail orders having been passed in their favour. This continued incarceration is stated to be for various reasons incl....
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....inely granted by the courts. 21. Learned counsel for the petitioners has also read the judgments of the Supreme Court and of the Division Bench of this court cited above, to argue that they mandate that prisoners should not be deprived of their liberty merely on the ground that they are poor or resource-less or are unable to furnish surety. 22. Mr. Tiwari, learned CGSC appearing on behalf of the FRRO however submits that, as a matter of policy, the Central Government has now suspended the issuance of any X-Category visas to undertrials and convicts, since they have found that foreign nationals who are undertrials and convicts are misusing such visas to perpetuate their stay in India, even though they have committed serious offences, on the pretext that they are required to face legal proceedings in India; but on being enlarged on bail and being granted special visas, many have been found to indulge in similar offences again. 23. Learned CGSC has also submitted that, especially in case of undertrials or convicts who have entered India without a valid visa or have violated the conditions of their visas by over-staying in the country, it would be against public policy for the....
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....rstanding of section 445 of the Cr.P.C.; 27.3. Nonetheless, this court maintains that the condition of furnishing surety is not purposeless; and it stems from the fundamental principle of bail, namely of releasing a prisoner from the court's custody to that of the surety, whose primary role is to ensure the prisoner's presence for the trial or for undergoing sentence. Thus, the waiver of this requirement cannot be a matter of entitlement, to be granted for the asking; 27.4. However, in the interests of individual liberty, the law allows that if a person cannot find a surety due to financial constraints or lack of local contacts (for example, if they are outsiders to the city), they should not be denied the benefit of bail merely because they cannot meet a condition that is beyond their control. This principle is however founded on the genuine inability of a prisoner to fulfill a given condition and is not meant to feed-into a mere excuse for non-compliance. This court believes that any waiver of a bail condition must not compromise the one most important legal requirement that a prisoner must make himself available for trial and for compliance with a sentence imposed; 27.5....
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....reakish" and are primarily aimed at ensuring that the accused does not disrupt the investigation, destroy evidence, commit further offenses, or fail to appear before the trial court, ultimately facilitating an efficient resolution of the trial; 27.8. Upon reviewing the Supreme Court's decisions in the Supreme Court Legal Aid Committee and Frank Vitus cases, it is clear that while bail conditions must be achievable by the prisoner, the court must still enforce those requirements that are necessary to ensure the availability of the prisoner for trial and for compliance with any sentence imposed, maintaining the integrity of the judicial process; and 27.9. After reviewing the judicial context, this court believes that the conditions imposed for grant of bail or suspension of sentence must pass muster on the anvil of the following criteria: First, the conditions must be necessary to ensure that the accused remains available for trial. Second, the conditions must be necessary to ensure that the integrity of the judicial process is preserved. Third, the conditions must not be impossible for the accused to fulfill. Only then the conditions imposed meet the aforesaid three-fold test,....
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....ashing' a prisoner's flight-risk; and merely accepting cash in lieu of surety would not uphold the integrity of the judicial process; and 28.5. In the opinion of this court, before a court waives the requirement of furnishing a surety or substitutes it with a cash deposit, it is necessary to duly consider the facts and circumstances of a given case, and if necessary to seek appropriate verification, to be satisfied that the prisoner suffers from a genuine inability to furnish surety. 29. In the present case, the material on record indicates that petitioner Stephen entered India in August 2011 on a Nigerian passport and Indian medical visa. The Indian medical visa was valid upto October 2011. His Nigerian passport expired in May 2016. Thereafter, petitioner Stephen has overstayed in India for the last about 13 years, without a valid visa. Apart from that, petitioner Stephen is also alleged to have submitted incorrect or forged visa and passport details to hotel owners, as filed by the latter on the portal of the Bureau of Immigration, to extend his stay in India. A Look-Out Circular had also been opened by the FRRO against him. It must also be noted that in the course of the p....
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....he FRRO that until 2020, the Central Government had a policy of issuing X-Category visas for undertrials and convicts, permitting them to remain in India to face criminal proceedings or to pursue criminal appeals. However, that policy has now been suspended, since it is found that the issuance of these special category visas only serves to prolong the unauthorised stay of such individuals in India, in violation of the provisions of the Foreigners Act. 36. After carefully considering the facts and circumstances concerning the two petitioners before it, this court is of the view that there is no basis or justification to allow their prayers for waiver of surety, or for accepting cash in lieu of surety, which prayers are accordingly rejected. 37. However, as a measure of abundant accommodation, this court considers it sufficient to modify the petitioners' bail conditions to the following limited extent : 37.1. Petitioner Stephen is permitted to furnish a personal bond with 01 surety in the sum of Rs. 40,000/- (instead of 02 sureties in the sum of Rs. 1,00,000/-); and 37.2. Petitioner Enyi is permitted to furnish a personal bond with 01 surety in the sum of Rs. 25,000/- (in....