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TMI Blog2025 (3) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... of bail is to ensure the appearance of the accused at trial, and this objective can be achieved by releasing him on bail and imposing reasonable conditions. A surety bond of such exorbitant value cannot be deemed reasonable in good conscience, as it effectively places a monetary price on liberty, which is inherently invaluable. Judicial custody, it must be underscored, is preventive in nature and not punitive. Therefore, deprivation of liberty must not be used as a form of punishment but rather as a measure of last resort to secure the ends of justice. The petitioner has undergone over 04 years in custody, in spite of being eligible for default bail, as provided by Section 167 (2) of Cr.P.C., merely because of his inability to meet the onerous conditions imposed by learned Court below. It is trite law that grant of bail under Section 167 (2) of Cr.P.C. is an indefeasible right, which accrues to the petitioner upon failure of the investigating agency to conclude the investigation within the stipulated timeframe i.e. expiration of the prescribed period of 90 days or 60 days, as applicable. Once this right accrues, the accused is entitled to bail upon expressing readiness and furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f default bail do not meet the objective standards of reason and justice.
The petitioner Pawan Kumar is ordered to be released on bail during the pendency of the trial, on his furnishing bail bonds in the sum of Rs. 50,000/- with one surety in the like amount - petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 7). In order to challenge the order dated 10.04.2023, the petitioner knocked the doors of the Hon'ble Supreme Court, however, the petition was dismissed as withdrawn (Annexure P-8). Thereafter, the petitioner again approached learned Additional Sessions Judge, Ludhiana, by filing revision and the said petition also met with the same fate as earlier vide order dated 23.02.2024 (Annexure P-11). CONTENTIONS 3. Learned counsel for the petitioner, inter alia, contends that the conditions imposed by learned Chief Judicial Magistrate with regard to furnishing of surety bonds amounting to Rs. 1.10 Crore each and a bank guarantee to the tune of Rs. 55.00 lakhs are manifestly stringent and onerous. Further, the grant of bail under Section 167 (2) of Cr.P.C., as in this case, is an indefeasible right, which accrued to the accused. The respondent was under a statutory duty to complete the investigation within 60 days from the date of authorisation of detention. Since the respondent failed to do the same, the petitioner was rightly granted default bail under Section 167 (2) of Cr.P.C. However, the imposition of such harsh conditions would not only frustrate the very object and purpose of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be framed and the petitioner has already spent more than 04 years in custody. OBSERVATIONS AND ANALYSIS 5. At the very outset, the conditions imposed by learned Chief Judicial Magistrate, Ludhiana, while granting the bail, are reproduced herein below: "Hence accused Pawan Kumar is admitted to bail in this complaint, titled Inspector (Prevention) of CGST Commissionerate, Ludhiana Vs. Pawan Kumar under Section 132 (1) (b & c) Punishable Under Section 132 (1) (i) of CGST Act, 2017 read with corresponding sections of Punjab GST Act, 2007 and IGST Act, 2017, on his furnishing bail bonds in the sum of Rs. One Crore Ten Lacs (Rs.1,10,00,000/-) with two sureties in the like amount (Atleast one Local) and subject to the conditions mentioned below: 1. Accused shall furnish a bank guarantee/FDR for an amount of Rs.55 Lakh to be forfeited to the State in case of violation of any of the terms and conditions imposed vide this order. 2. Accused shall come present on each and every date of hearing for appearance in the Court and for trial of the case. 3. Accused shall not leave the jurisdiction of this Country without permission of the Court. He shall surrender his passport in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. With a view to ameliorate the problems a number of directions are sought. We have examined the directions which we reproduce hereinafter with certain modifications: "1) The Court which grants bail to an undertrial prisoner/ convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department]. 2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release. 3) NIC would make attempts to create necessary fields in the e-prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA. 4) The Secretary, D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the period extending up to one-third of the maximum period prescribed for that offence. Section 479 of BNSS is reproduced herein below: "479. Maximum period for which undertrial prisoner can be detained. (1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to onehalf of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail: Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law: Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. 5. The aforesaid steps shall be taken as expeditiously as possible, preferably within two months from today. Reports shall be submitted by the Superintendent Jails to their respective Heads of the Department within the same time line for a comprehensive affidavit to be filed by each State Government/Union Territory through their respective Chief Secretaries. The affidavits shall furnish the details of the number of undertrials who would be entitled to extension of the benefit of Section 479 of the BNSS, the number of applications moved before the concerned Courts for their release and the number of undertrials actually released by the date of filing of the affidavits." (emphasis added) 11. The legal query that need consideration for disposal of the present petition is as follows: Whether the imposition of stringent financial and other onerous conditions is permissible while granting default bail under Section 167 (2) of Cr.P.C. (now Section 187(3) of BNSS) and bail under Section 479 of the BNSS? 12. Personal liberty holds a pre-eminent position in our constitutional framework, embodying the essence of fundamental rights enshrined in the Constitution. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal purpose of bail is to ensure that an accused person will return for trial if he is released after arrest. 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..." xxx xxx xxx 17. The Encyclopaedia Britannica brings out the same point even in more affluent societies: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be construed to be a fundamental right once the conditions as prescribed in the first proviso to Section 167 (2) of Cr.P.C. are fulfilled. Reference in this regard can be made to the judgments rendered by the Hon'ble Supreme Court in Rakesh Kumar Paul Vs. State of Assam, (2017) 15 SCC 67 and Bikramjit Singh Vs. State of Punjab, (2020) 10 SCC 616. 17. The right to default bail, rooted in the fundamental protections of Article 21 of the Constitution of India, cannot be frustrated by imposing excessively stringent or onerous conditions for furnishing bail bonds. Article 21 of the Constitution of India, is not a mere privilege but a fundamental safeguard against arbitrary detention. Any attempt to frustrate it by imposing excessive, unreasonable, or onerous conditions for furnishing bail bonds is nothing but a blatant subversion of the law. It is a well-settled principle that what cannot be done directly cannot be achieved indirectly. Therefore, the imposition of unreasonable bail conditions in cases of default bail, which would almost in all cases amount to an arbitrary deprivation of personal liberty, will defeat the very purpose of this statutory and constitutional safeguard. 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having undergone detention exceeding one-third of the maximum prescribed sentence for the alleged offence. Having already spent over four years in custody, his right to release under Section 479 of BNSS was not merely an entitlement but a legal mandate. Despite this, the failure of the authorities to ensure his release underscores a fundamental violation of due process. The duty cast upon the Superintendent of Jail under sub-section (3) of Section 479 of BNSS to inform the Court of an undertrial's eligibility for bail was either overlooked or ignored, resulting in the continued incarceration of the petitioner in clear contravention of the law. 20. The Hon'ble Supreme Court, in In Re-Inhuman Conditions in 1382 Prisons (supra), unequivocally held that Section 479 of BNSS applies retrospectively to all undertrial prisoners, irrespective of whether their case was registered before the enactment of the BNSS. It directed the immediate implementation of this provision to address the crisis of overcrowding in jails. Yet, the petitioner was deprived of this relief, showcasing a systemic lapse in adhering to judicial directions. 21. The failure to release the petitioner under Section 479 B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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