Case Summary
| Citation | Moti Ram v. State of M.P.(1978) 4 SCC 47 |
| Keywords | sec 436 of crpc, bail, without surities, poor mason |
| Facts | According to the facts, Moti Ram, the petitioner and accused, was a poor mason who had been found guilty of a crime. The Supreme Court passed an order, referring the same to the Chief Judicial Magistrate to enlarge him on bail without making any specifications regarding sureties or bail bonds. The CJM ordered a sum of Rs. 10,000/- to be paid as the bail benefit and also passed an odd order refusing to accept the sureties of the petitioner’s brother as he and his assets were in another district. The petitioner who filed the plea was required to provide a surety in the amount of Rs. 10,000 by the magistrate. In this case, the Supreme Court noted that the amount was enormous and declined to grant the mason bail for two reasons: The petitioner could not present such a large sum of money. Because the petitioner’s brother and his assets were located in a different district, the magistrate issued an unexpected decision refusing to accept him as a surety. When the Court’s order for release was frustrated by the Chief Judicial Magistrate’s intransigence, the petitioner moved this Court to modify the original order to the extent that the petitioner be released on furnishing the surety of Rs. 2,000/- on or executing a personal bond. |
| Issues | Whether the High Court or the Subordinate Courts have powers to enlarge a person on his own bond without sureties? Whether there are any criteria to quantify the amount of bail while releasing any person on surety? Is it within the power of the court to reject a surety because he or his estate is situated in a different District or State? |
| Contentions | |
| Law Points | *A person who has been found guilty may be released by the court of appeal on his own recognizance without sureties.*It cannot be the case that a defendant who is still awaiting trial has a worse case than a convicted person or that the court has more discretion to grant freedom when guilt is confirmed.*Relevant is the applicant’s guilt status, not the court’s standing (relevant).*It is a reduetio ad absurdam that a guilty man may request judicial freedom without sureties but an undertrial cannot (reduction to absurdity). The Court stated that when sureties were to be demanded from a person who is a prisoner who is awaiting trial, a person who has been found guilty, or a person who has filed an appeal, the amount to be insisted on being paid by the said persons should be dependent on variables. There are several factors that determine when sureties should be requested and how much should be required. Release on one’s own bond is covered by bail, whether sureties are required or not. The Court observed that “Social Justice is the signature tune of our Constitution and the little man in peril of losing his liberty is the consumer of social justice”.The magistrate’s demand for sureties—people with property—from his own area was insulting, the court said, and it was shocking to require the petitioner—a mason—to provide sureties for Rs 10,000. The court stated that no such statute exists that mandates sureties from non-regional or foreign applications. The Court noted that Indians living on Indian territory are protected by Article 14 of the Constitution. |
| Judgement | The Court held that monetary bail is not an indispensable element of the Criminal procedure.The Court said the Magistrate should not consider the points if the person belongs to the south and committed some offence in north and had no money for sureties or he may not know any one there then it’s impossible to furnish the sureties. The Court ordered the Magistrate to release the petitioner on his own bond in a sum of Rs 1000/-. |
| Ratio Decidendi & Case Authority |
Full Case Details
V.R. KRISHNA IYER, J. – “The law, in its majestic equality, forbids the rich as well as the
poor to sleep under bridges, to beg in the streets, and to steal bread,” lampooned Anatole France.
The reality of this caricature of equal justice under the law, whereby the poor are priced out of
their liberty in the justice market, is the grievance of the petitioner. His criminal appeal pends
in this Court and he has obtained an order for bail in his favour “to the satisfaction of the Chief
Judicial Magistrate”. The direction of this Court did not spell out the details of the bail, and so,
the magistrate ordered that a surety in a sum of Rs 10,000 be produced which, in actual impact,
was a double denial of the bail benefit. For one thing the miserable mason, the petitioner before
us, could not afford to procure that huge sum or manage a surety of sufficient prosperity.
Affluents do not befriend indigents. For another, the magistrate made an odd order refusing to
accept the surety ship of the petitioner’s brother because he and his assets were in another
district.
2. If mason and millionaire were treated alike, egregious illegality is an inevitability.
Likewise, geographic allergy at the judicial level makes mockery of equal protection of the
laws within the territory of India. India is one and not a conglomeration of districts, untouchably
apart.
3. When this Court’s order for release was thus frustrated by magisterial intransigence the
prisoner moved this Court again to modify the original order “to the extent that petitioner be
released on furnishing surety to the tune of Rs 2,000 or on executing a personal bond or pass
any other order or direction as this Hon’ble Court may deem fit and proper”. From this factual
matrix three legal issues arise (1) Can the Court, under the Code of Criminal Procedure, enlarge,
on his own bond without sureties, a person undergoing incarceration for a non-bailable offence
either as undertrial or as convict who has appealed or sought special leave? (2) If the Court
decides to grant bail with sureties, what criteria should guide it in quantifying the amount of
bail, and (3) Is it within the power of the Court to reject a surety because he or his estate is
situate in a different district or State?
4. This formulation turns the focus on an aspect of liberty bearing on bail jurisprudence.
The victims, when suretyship is insisted on or heavy sums are demanded by way of bail or local
bailors alone are persona grata, may well lie the weaker segments of society like the proletariat,
the linguistic and other minorities and distant denizens from the far corners of our country with
its vast diversity. In fact the grant of bail can be stultified or made impossibly inconvenient and
expensive if the Court is powerless to dispense with surety or to receive an Indian bailor across
the district borders as good or the sum is so excessive that to procure a wealthy surety may be
both exasperating and expensive. The problem is plainly one of human rights, especially
freedom vis-a-vis the lowly. This poignant import of the problem persuaded the Chamber Judge
– to invite the Supreme Court Bar Association and the Citizens for Democracy to assist the
Court in decoding the Code and its provisions regarding bail. The Kerala State Bar Federation
was permitted to intervene and counsel for the parties also made submissions. We record our
appreciation of the amicus curiae for their services and proceed to discuss the triple issues
formulated above.
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5. There is already a direction for grant of bail by this Court in favour of the petitioner and
so the merits of that matter do not have to be examined now. It is a sombre reflection that many
little Indians are forced into long cellular servitude for little offences because trials never
conclude and bailors are beyond their meagre means. The new awareness about human rights
imparts to what might appear to be a small concern relating to small men a deeper meaning.
That is why we have decided to examine the question from a wider perspective bearing in mind
prisoner’s rights in an international setting and informing ourselves of the historical origins and
contemporary trends in this branch of law. Social Justice is the signature tune of our
Constitution and the little man in peril of losing his liberty is the consumer of social justice.
6. There is no definition of bail in the Code although offences are classified as bailable and
non-bailable. The actual sections which deal with bail, as we will presently show, are of blurred
semantics. We have to interdict judicial arbitrariness deprivatory of liberty and ensure “fair
procedure” which has a creative connotation after Maneka Gandhi [(1978) 1 SCC 248].
7. Before we turn to the provisions of the Code and dwell on the text of the sections we
may as well remember what Justice Frankfurter said: “there is no surer way to misread a
document than to read it literally”.
8. Speaking generally, we agree with the annotation of the expression ‘bail’ given in the
American Jurisprudence (2nd Edn. Vol. 8, Article 2, p. 783):
The term ‘bail bond’ and ‘recognizance’ are used interchangeably in many bail statutes,
and quite generally without distinction by the courts, and are given a practically identical
effect.
According to the American Jurisprudence Article 6, p. 785, there is power in the court to release
the defendant without bail or on his own recognizance. Likewise, the definition of bail as given
in Webster’s Third Year International Dictionary: “The process by which a person is released
from custody”.
9. The concept of bail has a long history briefly set out in the publication on ‘Programme
in Criminal Justice Reform’:
The concept of bail has a long history and deep roots in English and American law. In
medieval England, the custom grew out of the need to free untried prisoners from diseaseridden jails while they were waiting for the delayed trials conducted by travelling justices.
Prisoners were bailed, or delivered, to reputable third parties of their own choosing who
accepted responsibility for assuring their appearance at trial. If the accused did not appear,
his bailor would stand trial in his place.
Eventually it became the practice for property owners who accepted responsibility for accused
persons to forfeit money when their charges failed to appear for trial. From this grew the modern
practice of posting a money bond through a commercial bondsman who receives a cash
premium for his service, and usually demands some collateral as well. In the event of nonappearance the bond is forfeited, after a grace period of a number of days during which the
bondsman may produce the accused in court.
10. It sounds like a culture of bonded labour, and yet are we to cling to it. Of course, in the
United States, since then, the bondsman emerged as a commercial adjunct to the processes of
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criminal justice, which, in turn, bred abuses and led to reform movements like the Manhattan
Bail Project. This research project spurred the National Bail Conference, held in 1964, which
in its crucial chain reaction provided the major impetus to a reform of bail law across the United
States. The seminal statutory outcome of this trend was the enactment of the Bail Reform Act
of 1966 signed into law by President Lyndon B. Johnson. It is noteworthy that Chief Justice
Earl Warren, Attorney General Robert Kennedy and other legal luminaries shared the view that
bail reform was necessary. Indeed, this legislative scenario has a lesson for India where a much
later Criminal Procedure Code, 1973 has largely left untouched ancient provisions on this
subject, incongruous with the Preamble to the Constitution.
11. An aside. Hopefully, one wishes that socio-legal research projects in India were started
to examine our current bail system. Are researchers and jurists speechless on such issues
because pundits regard these small men’s causes not worthwhile? Is the art of academic
monitoring of legislative performance irrelevant for India?
12. The American Act of 1966 has stipulated, inter alia, that release should be granted in
non-capital cases where there is reasonable assurance the individual will reappear when
required; that the Courts should make use of a variety of release options depending on the
circumstances; that information should be developed about the individual on which intelligent
selection of alternatives should be based.
13. The Manhattan Bail Project, conducted by the Vera Foundation [Vera Institute of
Justice Ten-year Report 1961-71, p. 20] and the Institute of Judicial Administration at New
York University School of Law, found that about sixty-five per cent of all felony defendants
interviewed could be recommended for release without bail. Of 2,195 defendants released in
this way less than one per cent failed to appear, when required. In short, risk of financial loss
is an insubstantial deterrent to flight for a large number of defendants whose ties with the
community are sufficient to bring them to court.
14. The consequences of pre-trial detention are grave. Defendants presumed innocent are
subjected to the psychological and physical deprivations of jail life, usually under more onerous
conditions than are imposed on convicted defendants. The jailed defendant loses his job if he
has one and is prevented from contributing to the preparation of his defence. Equally important,
the burden of his detention frequently falls heavily on the innocent members of his family.
15. It is interesting that American criminological thinking and research had legislative
response and the Bail Reforms Act, 1966 came into being. The then President, Lyndon B.
Johnson made certain observations at the signing ceremony:
“Today, we join to recognize a major development in our system of criminal justice: the
reform of the bail system.
This system has endured – archaic, unjust and virtually unexamined – since the Judiciary
Act of 1789.
The principal purpose of bail is to ensure that an accused person will return for trial if he
is released after arrest.
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How is that purpose met under the present system? The defendant with means can afford
to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the
price. He languishes in jail weeks, months and perhaps even years before trial.
He does not stay in jail because he is guilty.
He does not stay in jail because any sentence has been passed.
He does not stay in jail because he is any more likely to flee before trial.
He stays in jail for one reason only—because he is poor. . . .”(emphasis added)
16. Coming to studies made in India by knowledgeable Committees we find the same
connotation of bail as including release on one’s own bond being treated as implicit in the
provisions of the Code of Criminal Procedure. The Gujarat Committee from which we quote
extensively, dealt with this matter in depth:
“The bail system, as we see it administered in the criminal courts today, is extremely
unsatisfactory and needs drastic change. In the first place it is virtually impossible to
translate risk of non-appearance by the accused into precise monetary terms and even its
basic premise that risk of financial loss is necessary to prevent the accused from fleeing is
of doubtful validity. There are several considerations which deter an accused from running
away from justice and risk of financial loss is only one of them and that too not a major
one. The experience of enlightened Bail Projects in the United States such as Manhattan
Bail Project and D.C. Bail Project shows that even without monetary bail it has been
possible to secure the presence of the accused at the trial in quite a large number of cases.
Moreover, the bail system causes discrimination against the poor since the poor would not
be able to furnish bail on account of their poverty while the wealthier persons otherwise
similarly situate would be able to secure their freedom because they can afford to furnish
bail. This discrimination arises even if the amount of the bail fixed by the Magistrate is not
high, for a large majority of those who are brought before the Courts in criminal cases are
so poor that they would find it difficult to furnish bail even in a small amount.” (emphasis
added)
17. The vice of the system is brought out in the Report:
The evil of the bail system is that either the poor accused has to fall back on touts and
professional sureties for providing bail or suffer pre-trial detention. Both these
consequences are fraught with great hardship to the poor. In one case the poor accused is
fleeced of his moneys by touts and professional sureties and sometimes has even to incur
debts to make payment to them for securing his release; in the other he is deprived of his
liberty without trial and conviction and this leads to grave consequences, namely: (1)
though presumed innocent he is subjected to the psychological and physical deprivations
of jail life; (2) he loses his job, if he has one, and is deprived of an opportunity to work to
support himself and his family with the result that burden of his detention falls heavily on
the innocent members of the family, (3) he is prevented from contributing to the preparation
of his defence; and (4) the public exchequer has to bear the cost of maintaining him in the
jail.
18. The Encyclopaedia Britannica brings out the same point even in more affluent
societies:
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Bail, procedure by which a judge or magistrate sets at liberty one who has been arrested
or imprisoned, upon receipt of security to ensure the released prisoner’s later appearance
in court for further proceedings. . . . Failure to consider financial ability has generated much
controversy in recent years, for bail requirements may discriminate against poor people
and certain minority groups who are thus deprived of an equal opportunity to secure their
freedom pending trial. Some courts now give special consideration to indigent accused
persons who, because of their community standing and past history, are considered likely
to appear in court.
19. A latter Committee with Judges, lawyers, members of Parliament and other legal
experts, came to the same conclusion and proceeded on the assumption that release on bail
included release on the accused’s own bond:
We think that a liberal policy of conditional release without monetary sureties or financial
security and release on one’s own recognizance with punishment provided for violation
will go a long way to reform the bail system and help the weaker and poorer sections of
the community to get equal justice under law. Conditional release may take the form of
entrusting the accused to the care of his relatives or releasing him on supervision. The court
or the authority granting bail may have to use the discretion judiciously. When the accused
is too poor to find sureties, there will be no point in insisting on his furnishing bail with
sureties, as it will only compel him to be in custody with the consequent handicaps in
making his defence.
19A. Again:
We should suggest that the Magistrate must always bear in mind that monetary bail is not
a necessary element of the criminal process and even if risk of monetary loss is a deterrent
against fleeing from justice, it is not the only deterrent and there are other factors which
are sufficient deterrents against flight. The Magistrate must abandon the antiquated concept
under which pre-trial release could be ordered only against monetary Bail. That concept is
out-dated and experience has shown that it has done more harm than good. The new insight
into the subject of pre-trial release which has now been developed in socially advanced
countries and particularly the United States should now inform the decisions of the
Magistrates in regard to pre-trial release. Every other feasible method of pre-trial release
should be exhausted before resorting to monetary bail. The practice which is now being
followed in the United States is that the accused should ordinarily be released on order to
appear or on his own recognizance unless it is shown that there is substantial risk of nonappearance or there are circumstances justifying imposition of conditions on release. . . If
a Magistrate is satisfied after making an enquiry into the condition and background of the
accused that the accused has his roots in the community and is not likely to abscond, he
can safely release the accused on order to appear or on his own recognizance. . .
20. Thus, the legal literature, Indian and Anglo-American, on bail jurisprudence lends
countenance to the contention that bail, loosely used, is comprehensive enough to cover release
on one’s own bond with or without sureties.
21. We have explained later that the power of the Supreme Court to enlarge a person during
the pendency of a Special Leave Petition or of an appeal is very wide, as Order 21 Rule 27 of
the Supreme Court Rules discloses. In that sense, a consideration of the question as to whether
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the High Court or the subordinate courts have powers to enlarge a person on his own bond
without sureties may not strictly arise. Even so, the guidelines which prevail with the Supreme
Court when granting suspension of sentence must, in a broad sense, have relevance to what the
Code indicates except where special circumstances call for a different course. Moreover, the
advocates who participated—many of them did—covered the wider area of release under the
Code, whether with or without sureties, and that is why we consider the relevant provisions of
the Code in some detail.
22. Let us now examine whether there is anything in the provisions of the Code which make
this meaning clearly untenable.
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 suffer stress and distress in prison unless sureties
are hauled 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 when 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.
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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.
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 agrees 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.
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,
surety ship 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 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.
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33. To add insult to injury, the magistrate has demanded sureties from his own district! (We
assume the allegation in the petition). What is a Malayalee, Kannadiga, Tamil or Telugu to do
if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair,
Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant
places. He may not know any one there and might have come in a batch or to seek a job or in a
morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies. What
law prescribes surety is from outside or non-regional language applications? What law
prescribes the geographical discrimination implicit in asking for sureties from the court district?
This tendency takes many forms, sometimes, geographic, sometimes linguistic, sometimes
legalistic. Article 14 protects all Indians qua Indian, within the territory of India. Article 350
sanctions representation to any authority, including a court, for redress of grievances in any
language used in the Union of India. Equality before the law implies that even a vakalat or
affirmation made in any State language according to the law in that State must be accepted
everywhere in the territory of India save where a valid legislation to the contrary exists.
Otherwise, an adivasi will be unfree in free India, and likewise many other minorities. This
divagation has become necessary to still the judicial beginnings, and to inhibit the process of
making Indians aliens in their own homeland. Swaraj is made of united stuff.
34. We mandate the magistrate to release the petitioner on his own bond in a sum of Rs
1,000.
An afterword
35. We leave it to Parliament to consider whether in our socialist republic, with social
justice as its hallmark, monetary superstition, not other relevant considerations like family ties,
roots in the community, membership of stable organisations, should prevail for bail bonds to
ensure that the ‘bailee’ does not flee justice. The best guarantee of presence in court is the reach
of the law, not the money tag. A parting thought. If the indigents are not to be betrayed by the
law including bail law, re-writing of many processual laws is an urgent desideratum; and the
judiciary will do well to remember that the geo-legal frontiers of the Central Codes cannot be
disfigured by cartographic dissection in the name of language or province.
