JUDGMENT
A. Pasayat, J.
1. Labelling conditions imposed by the learned Judicial Magistrate, first class, Jaleswar while disposing of petitioner’s application for bail to be unreasonable, and virtually denial of right to get bail this application has beers tiled,
2. On the accusations of having committed offence punishable under Section 47 of the Bihar and Orissa Excise Act, 1915 (in short, the ‘Act’) petitioner was arrested. He moved for bail before learned Judicial Magistrate, first class, Jaleswar. Learned Magistrate observed that alleged offence was bail able in nature. Petitioner was directed to be released on bail of Rs. 2.000/- with one surety for the like amount and to deposit cash security of Rs. 2,000/- since, according to learned Magistrate, there was likelihood of his absconding. Petitioner undisputedly has deposited the amount, but has prayed for variation of the conditions it is submitted by the learned counsel for petitioner for petitioner that the offence being bail able, and there being no material for the presumptive conclusion of the learned Judicial Magistrate that the petitioner was likely to abscond, direction for furnishing cash security of Rs. 2000/- is unreasonable. The learned counsel for State on the other hand submitted that in a given case cash security can be directed to be furnished. It would all depend on the nature of offence. and an offence under the Act being one which relates to illicit distilled liquor is of a serious nature. He fairly accepted that there was no matetrial to support conclusion of learned Magistrate that petitioner is likely to abscond, it is, however, submitted that since the offence was of a very serious nature, there was always possibility of the accused fleeing from justice.
3. In the absence of any specific provision relating to furnishing of cash security and/or conditions which may be attached by a Magistrate while granting bail, it is within the judicial discretion of the Magistrate concerned to impose such conditions or require furnishing of such security as the circumstances may require. Chapter XXXIII of the Code of Criminal Procedure, 1973 (in short, ‘CrPC’) deals with the provisions as to bails and bonds. There is no specific definition of bail as was observed by me in Suman Kumar Naik and two others v. Republic of India (Criminal Misc. Case. No. 425 of 1994 disposed of on 28-2-1994).
4. ‘Bail’ remains undefined term in the Cr PC. Nowhere else the term has been statutory defined. Conceptual, y, it continues to be understood as a right for assertion of freedom against State imposed restraint. Since the O.N. Declaration of Human Rights or 1948, to which india is a signatory,, the concept of bail has found a place within the scope of human rights. The dictionary meaning ot the expression ‘bail’ denotes a security for appearance of a prisoner for his release. Etymo logically, the word is derived from an old French verb ‘bailer ‘which means to ‘give’ or ‘to deliver, although another view is that its derivation is from the Latin term baiulare meaning ‘to bear a burden’. Bail is a conditional liberty. Strouds’ Judicial Dictionary (Fourth Edition, 1971) spells out certain other details, it states ;
“When a man is taken or arrested for felony, suspicion of felony, indicated of felony, or any such case, so that he is restrained of his liberty-And. being by law bailable, offence surety to those which have authority to bail him, which sureties are bound for him to the Kings use in a certain sums of money, or body for body, that he shall appear before the Justices of Goale delivery at the next sessions etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed, that is to say, set at liberty until the day appointed for his appearance.”
Bail may thus be regarded as a mechanism whereby the Sate devolutes upon the community the function of securing the presence of the prisoner, and at the same time involves participation of the community in administration of justice.
Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the Police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for beinoi shielded from the hazards of being exposed to the misadvantures of a person alleged to have committed a crime; and on the other, the fundamental cannon of criminal jurisprudence, viz, the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A. K. Gopalan v. State of Madras ; AIR 1950 SC 1000).
The law of bails, like any other branch of law, has its own philosophy and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal An accused is not detained in custody with the object of punishing him on the assumption of his guilt.
5. Chapter XXXIII consists of Sections 436 to 450. Sections 436 and 437 provide for the granting of bail to accused persons before trial and conviction. For the purposes of bait offences are classified into two categories, i.e., (i) baikable, and (ii) non-bailable. Sac, 436 and 437 in non-bailable cases. A person accused of a bailable offenca is entitled to be released on bail pending his trial. in case of such offences, a police officer has no discretion to refuse bail if the accused is prepared to furnish surety. The Magistrate gets jurisdiction to grant bait during the course of investigation when the accused is produced before him. In bailable offence there is no question of discretion for granting bail. The, only choice for the Court is as between taking a simples recognizance of the principal offender or demanding security with surety. Persons contemplated by this section cannot be taken Into custody unless they are unable or unwilling to offer bail or to execute personal bonds. The Court has no discretion, when granting bail under this section, even to impose any condition except the demanding of security with sureties.
“Bailable offence” is defined in Clause (b) of Section 2 of the CrPC to mean an offence which is shown as bailable in the-‘First Schedule of the Cr PC, or which is made bailable by any other law for the time being in force; and “non bailable offence” means any other offence.
6. While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered, Elaborate analysis or exhaustive exploration of the merits is not required. (See Niranjan Singh and Anr. v. Prabhakar Rajram Kharote and Ors. : AIR 1380 SC 785), Where the offence is of serious nature the question of grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public. (See State of Maharashtra v. Anand Chaintaman Dighe : AIR 1990 SC 625; and State v. Surendranath Mohanty : (1990) 3 OCR 462),
7. It must be understood that in every bailable offence bail is a right and not a favour. The bail demanded should never be excessive with reference to social status of the party. As observed by the apex Court in Talab Haji Hussain v. Madhukar Purshottam Mondkar : AIR 1958 SC 376 the classification of offences into the two categories of bailab Se and non bailable offences may perhaps be explained on the basts that bailable offences are generally regarded as less grave and serious than non-bailable offences. Though it may not be easy to explain why offences under Sections 477, 477A, 475 and 308, IPC or Section 47 of the Act should be regarded as bailable, whereas offences under Section 379 should be non-bailable. It was observed in the said case that even in regard to persons accused of bailable offences, if the amount of bail fixed is unreasonably high the accused person can move the High Court or the Court of Session for reduction of that amount. Similarly, a person accused of a bailable offence may move the High Court or the Court of Session to be released on bail and the High Court or the Court of Session may direct either that the amount should be reduced or that the person may be admitted to bail Bail covers both release on ane”s own bond with surety or sureties. Want surety amount should be demanded is dependent on several variable factors. Heavy amount should not be demanded an surety amount. Guiding principles when accused can be released on personal bond without sureties were indicated by the apex Court in Hussainera Khatoon v. Home Secretary, State of Bihar : AIR 1979 SC 1360. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. It was highlighted that in the majority of cases considerations Ike family ties and relationship, roots in the community, employment, status etc. may prevail with the Court in releasing the accused on his personal bond and particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the community, and in such cases release on personal bond could, as far as possible, be preferred: Courts should be liberal in releasing poor or young or infirm persons and women on their own recognizance putting, however, reasonable conditions if necessary and permissible. (See Moti Ram v. State of Madhya Pradesh : AIR 1978 SC 1594) Since Sec, 436 makes an Invariable rule for ball in case of bailable offences subject to specified exception under Sub-section (2), the surety aspect also has to be kept in mind while dealing with a case of that nature. Conditions relating to sureties should not be excessive as it would virtually amount to denial of ball itself. As observed by this Court in Paradesh Patra and Anr. v. State of Orissa : 1993 (II) OLR 452 the Magistrate or Sessions Court has jurisdiction to require a person to furnish cash security as a condition of bail, but such a condition should not be harsh, oppressive and virtually resulting in denial of bail. Section 445, Cr PC provides that it shall be open to the person who has been directed to be released on bail on furnishing personal bond (excepting personal bond lor qood behaviour) to furnish cash security in lieu of personal bond or recognizance with permission of the Court.
8. Judged in the aforesaid background, the direction to furnish cash security in addition to bail bond of other surety is clearly untenable. The said condition is set aside. The petitioner shall, however, furnish property security of Rs, 5,000/- (five thousand) with one surety. On the said security being furnished, cash deposited shall be refunded to the petitioner. It is deplorable that even after the position relating to cash security has been elaborated by apex Court and this Court learned JMFC without any basis and without application of judicial mind has directed the accused-petitioner to furnish cash security on presumptuous conclusions.
The criminal misc. case is accordingly disposed of.
