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IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH : NAGPUR.
Criminal Writ Petition No.576 of 2010
Ramu Harishchandra Bawane,
Convict No. C/7354,
Central Prison,ig
Nagpur. .... Petitioner.
Versus
1. Deputy Inspector General
of Prisons [East Region],
Nagpur.
2. The Superintendent,
Central Prison,
Nagpur. .... Respondents.
*****
Petition received by Post.
Mr. T.A. Mirza, Addl. Public Prosecutor for
respondents.
*****
CORAM : A.H. JOSHI AND
A.R. JOSHI,JJ.
Date : 29th November, 2010.
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ORAL JUDGMENT [Per A.H. Joshi, J.]:
1. Rule. Rule is made returnable forthwith. Heard
finally.
2. Petitioner is undergoing sentence for conviction in
Central Prison, Nagpur. On his application, he has been
granted furlough. He has been asked to furnish a surety
having his ordinary residence in Maharashtra. This seems
to have been
done in the background that petitioner is
domiciled of State of Gujarat. Petitioner is aggrieved by
the order directing that the surety should be of a person
who is an ordinary resident of Maharashtra.
3. We had directed learned APP to take instructions
from Deputy Inspector General of Prisons and suggest the
modalities which can be adopted in the case of present
nature to avoid insistence of surety of the nature ordered.
4. Learned APP has tendered an Affidavit-in-Reply.
th
This affidavit accompanies copy of Govt. Circular dated 16
December, 2008.
It is prescribed in Direction No.6 contained in
this Circular that whenever the prisoner hails from other
State, a surety from State of Maharashtra be asked.
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5. We have noticed that such a condition cannot be
validly enforced in the background of Judgment of Hon ble
Supreme Court in case of Moti Ram & others Vs. State of
Madhya Pradesh [AIR 1978 SC 1594], where the Hon ble Supreme
Court has held as follows:-
32. To add insult to injury, the
magistrate has demanded sureties from his own
district! (We assume the allegation in the
petition). What is a Malayalees, Kannadiga,Tamil or Telugu to do if arrested for alleged
misappropriation or theft or criminal trespassChowk?
in Bastar, Port Blair, Pahalgam or Chandni
He cannot have sureties
properties in these distant places.
owning
He may
not know any one there and might have come ina 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 sureties from outside or non-
regional language applications? What lawprescribes the geographical discrimination
implicit in asking for sureties from the court
district? This tendency takes many forms,sometimes, geographic, sometimes linguistic,
sometimes legalistic. Art. 14 protects all
Indians qua Indians, within the territory of
India. Art. 350 sanctions representation to
any authority, including a court, for redressof 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 validlegislation 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.
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6. Sum and substance of the dictum of Hon ble Apex
Court is that conditions, compliance whereof is akin to
impossible, should not be imposed, as such condition
operates as a clog on liberty.
7. Learned APP has argued that if the sureties from
other States are accepted, and prisoner flees away from
hands of law, it would be an endless job to catch hold of
such sureties and the prisoner after completion of his
parole.
8. We have analyzed and tested this argument of
learned APP.
We observe that this submission is, on the face of
it, fallacious.
9. The scheme of law of asking surety does not
contemplate that:-
[a] The sureties would themselves go to search
and secure the physical presence of the
prisoner.
[b] The sureties themselves to perform what
the prisoner was to do.
[c] The sureties would watch and ward and / or
monitor the prisoner round the clock.
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10. In case of breach, the surety pays or loses the
amount of bond. What is contemplated while insisting on
surety bond is to ensure the moral pressure of the surety
on the mind and behaviour of the person whose promise and
conduct is assured by the surety.
11. By virtue of what the surety has done, i.e., he
undertook to be a surety, and has executed a bond etc.,
exerts a moral pressure on the person for whose freedom, the
comes forward
surety bond is executed. It is believed that the surety
to bind himself because the surety has
occasion to know the prisoner and there exists some
relations arising from some nexus, such as affinity,
friendship, relations by blood or marriage etc. Therefore,
the beneficiary is expected to take care of the prestige of
the promise of the surety.
12. When the prisoner does not have any such nexus with
the people in the State where he is imprisoned, such
sureties may either be hired or fictitious, and even when
genuine, would not render any help to further the cause of
asking of the sureties.
13. In order to overcome this situation, namely that
the prisoner does not flee from the hands of law, at the
same time his liberties are not abrogated, the State will
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have to devise some modalities.
14. Wisdom is always a presumption in the power and
authority of rule-makers, and we hope it to flow from the
Executive while devising modalities. The Govt., ought, in
its rule-making power, devise such modalities as would be
workable, and would result in respecting the rights and
concessions of prisoner, and would also be efficacious in
proper working.
15.
We express that we need not formally strike down
the rule referred to in foregoing Paragraph No.4, however,
in view of what the Hon ble Supreme Court has held in Moti
Ram s case [cited supra], said condition be appropriately
substituted.
16. Learned APP, at this stage, urges that State be
given a longer time to take a decision. The request is
reasonable.
17. We grant ten weeks time to the Govt., to re-
consider the condition referred to herein before and give
further and appropriate directions within ten weeks from
today. Compliance be reported within two weeks thereafter.
18. Copy of this order be supplied to learned APP as
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per rules for communication to the Principal Chief
Secretary, Home Department, Mantralaya, Mumbai, and due
compliance.
Rule is accordingly made absolute.
JUDGE JUDGE
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