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Petitioner: LAKHI NARAYAN KUNDU VS Respondent: THE CROWN
P L D 1955 Dacca 84
P L D 1955 Dacca 84
Before Ellis, A. C. J., and Ispahani, J
LAKHI NARAYAN KUNDU‑Accused‑--Petitioner
versus
THE CROWN‑Opposite‑--Party (and another petition)
Miscellaneous Cases Nos. 38 and 39 of 1952, decided on 4th April, 1952.
(a) Criminal Procedure Code (V of 1898), S. 499‑--Conditional bond‑Illegal.
The word "conditioned" in section 499 is not so com prehensive as to include all conditions that the Magistrate may like to impose e.g., that the accused is to live in a certain place.
On the language of section 499 read with Form XLII, Sessions Judges and Magistrates have no power whatever to impose any condition at all when they grant bail. This section of the Code does not warrant the imposition of any condition and there is no other section in the Code which has any application in the matter. Just as the Sessions judge or Magistrate has no power to impose any condition, so, on the language of the section he is not competent to accept any conditions which the accused person may like to suggest himself. The Court can grant bail on condition that the person shall attend at the time and place mentioned in the bail and that would cover an attendance before the Police. But it does not cover such conditions as that an accused shall attend a local Police Station twice daily, in the morning and in the evening, to give Hajira before the Police Officer.
Kamala Pandel v. The King 50 Cr. L J 1009 ; Rajballam Singh v. King‑Emperor L R 22 Pat. 726 , Gyani Meher Singh v Emperor 43 C W N 639‑26 A I R 1939 Cal. 714‑‑‑1939 I L R 2 Cal. 42‑41 Cr. L J 138 ; Kimat Rai Sanwal Singh Khushalani v. Emperor A I R (32) 1945 Lah. 215 ; Adkoo Umrao Kalar v. Emperor A I R 1938 Nag. 420 ; Ram Bilas Sharma and others v. Emperor A I R 1940 Pat. 375 ; Dupeyron and another v.1~riser I L R 23 Cal. 495 and Emperor v. Chintaram A I R 1936 Nag. 243 ref.
(b) Criminal Procedure Code (V of 1898), Ss. 499 and 513 ‑Demand for cash security‑Illegal.
Section 499 contemplates the execution of a bond with sureties and not a cash deposit. A Magistrate has no power to require an accused person to deposit a sum of money in Court as surety for his attendance in Court at a given time.
There is, however, section 513. This section was enacted in the interests of persons who, because they may be strangers to the locality or for some other reason, are not in a position to arrange for bail or able to offer sureties. In the case of these persons if they offer a cash deposit, the Court is allowed in its discretion to accept that deposit in lieu of a bond ; but neither section 499 nor section 513 of the Code contains anything which authorises a Magistrate of his own accord to insist on the deposit of a sum of money as surety in the place of a bond. Such a demand for cash security is illegal.
Abdul Ghani and others v. Emperor 48 Cr. L J 773 and R. R. Chari v. Emperor 49 Cr. L J 282 ref.
R. C. 2alukdar, for Petitioner in M. C. No. 38 of 1952.
A. M. Sayem, for Petitioner in M. C. No: 39 of 1952.
D. C. Roy, Amicus Curiae.
Salahuddin Ahmed, Deputy Legal Remembrancer, for the Crown in M. C. No. 38 of 1952.
JUDGMENT
ELLIS, J.--‑These two Miscellaneous Cases have been heard together as they both relate to the granting of bail by Subordinate Courts. They are now disposed of under this one judgment.
In Miscellaneous Case No. 38 of 1952, the petitioner Lakhi Narayan Kundu obtained a Rule on the District Magis trate of Rangpur to show cause why the condition imposed on the granting to him of bail of Rs. 2,000 should not be set aside. The petitioner was arrested on the night of the 16th of October, 1951, and was released on the 18th of October, 1951, on bail of Rs. 5,000. Subsequently on the 22nd of October, 1951, the amount was reduced to Rs. 2,000 on condition that the petitioner should live within the Rengpur Municipality. The petitioner then moved the Sessions judge and in his order of the 6th of February, 1952, the learned Sessions Judge said that he saw no ground to remove the restriction which the Magistrate thought expedient to impose on the petitioner. Thereafter the petitioner moved this Court in the matter of this restriction and obtained the present Rule.
Mr. Talukdar has appeared before us in support of the Rule and Mr. Salahuddin Ahmed, the Deputy Legal Remem brancer, has appeared to oppose it. Mr. Talukdar pins his faith on the decision of Harries, C. J. and J. P. Mitter. J. in the case of Kamala Pandey v. The King (50 Cr. L J 1009). According to Mr. Talukdar the case cited is on all fours with the case of the petitioner Lakhi Narayan Kundu and lays down the law with regard to conditions attached to bail bonds, '
Miscellaneous1952 concerns one Moinuddin. Moinuddin was arrested in respect of an offence under section 405 of the P. P. C. and applied for bail. On the 5;‑n of February, 1952, the Magistrate directed that he should be released on furnishing .cash security of Rs. 2,000 only. Moinuddin then approached the Sessions judge who, on the 14th of February, 1952, stated that he did not see sufficient ground for reducing the amount of cash security fixed by the Sub‑Divisional Officer of Dinajpur Sadar. The petition was accordingly rejected. Moinuddin then moved this Court and obtained a Rule on the ground that the Magistrate's order directing the furnishing of cash security was bad and was not sustainable in law.
In this case Mr. Sayem appeared on behalf of the petitioner and pinned his faith on the decision of Agarwala and Brough, JJ. in the case of Rajbatlam Singh v. King Emperor (L R 22 Pat. 726). Mr. Sultanuddin Ahmed, the Deputy Legal Remembrancer, opposed the Rule in this case.
For some time past we have been seriously concerned with the lax manner in which bail is granted by Sessions Judges and Magistrates in criminal matters. At the present moment over 50 Sessions cases are held up, because the accused persons have been granted bail and have broken their bail. Of this number, no fewer than 31 are held up in the District of Khulna alone where the accused persons having been granted bail, have slipped over the border into Bharat.
We have also viewed with growing concern the manner in which Courts have begun to grant "conditional" bail In our experience during the last four years, Courts have granted conditional or temporary bail to accused persons who have previously been refused bail either for the purpose of visiting their sick wives or for the purpose of attending the death‑beds of their ailing parents who wished to see them for the last time before they died or so it is stated in the appli cations for bail ; in order that they may cut their crops in the harvesting season, in order that they may say their prayers or in order that they may celebrate the Id in the bosom of their families. For purposes such as these the Courts have granted accused persons limited bail for short periods and in one instance the accommodation was actually styled in the order sheet as "leave" as though the accused person was a Govern ment servant applying for causal leave. We have also been disturbed at the manner in which bail has been granted to persons on condition either they would live within a certain specified area or that they would keep out of a specified area.
In these circumstances, we decided to review the whole question of the granting of bail by Subordinate Courts and to that end, we invited Mr. Dinesh Chandra Roy to appear before us as amicus curiae and to give us the benefit of his wide knowledge and experience of criminal matters.
The section which deals with the question now under consideration is section 499 of the Code of Criminal Procedure.
The section reads : "499. (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the Police Officer or Court, as the case may be, thinks sufficient shall be executed by such person, and when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the Police Officer or Court, as the case maybe. (2) If the case so require, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Sessions or other Courts to answer the charge."
Mr. Roy has, first of all, drawn our attention to the decision of Edgley, J. in the case of Gyani Meher Singh v. Emperor (43 C W N 639=A I R 1939 Cal. 714=1939 I L R 2Cal. 42=41 Cr. L J 138.). His Lordship after reviewing the facts of the case and commenting on the circumstance that the petitioner had been released on bail on giving an undertaking not to deliver any speech until the disposal of the case‑ against him went on to observe:
"It is argued by the learned Advocate for the petitioner that the order of forfeiture is illegal, because there is no provision in the Code of Criminal Procedure whereby an undertaking for good behaviour such as that which had been embodied in the bail bond in this case can be so included. The object of bail is primarily to ensure the appearance of an accused person on a certain day and place. The offence is respect of which Gyani Meher Singh was accused was a non‑bailable one punishable with transpor tation for life. Strictly speaking, this man ought not to have been released on bail at all, having regard to the. provisions of section 497 (1) of the Code of Criminal Procedure and doubtless had it not been for the fact that he was prepared to give an undertaking to the effect that he would not deliver any speech, he would never have been so released. The fact remains, however, that under the provisions of section 499 of the Code of Criminal Procedure it is provided that before any person is released on bail or released on his own bond, a bond for such a sum of money as the Police Officer or the Court, as the case may be, thinks sufficient shall be executed by such person and, when he is released on bail, by one or more sufficient sureties, conditioned that such person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the Police Officer or the Court, as the case may be. It follows, therefore, that the only condition contemplated by a bail bond is a condition for attendance in Court and it further follows that a bail bond in which any other condition is included of the nature of condition with which we are now dealing, such a bond cannot be regarded as a bond under the Code. Section 514 of the Code of Criminal Procedure, which prescribes the procedure to be followed on the forfeiture of a bond, only relates to bonds taken under the Code. In this view of the case I do not think that the learned Magistrate had jurisdiction to forfeit the bond executed by the petitioner and his surety in this case as that bond could only be regarded as a bond taken under the Code in so far as the bond is for the appearance of the petitioner in Court. In view of the undertaking which had been given by Gyani Meher Singh I consider that the procedure which should have been adopted in a case of this sort would have been for the Police to bring to the notice of the Court the fact that there had been a violation of the undertaking, in order that the Court might thereupon cancel the bail bond in the exercise of its inherent jurisdiction. It is also possible that by violating his undertaking the petitioner may have committed a contempt of Court. I am of opinion, however, that this undertaking not to make any speech should not have been imported into the bail bond and that the forfeiture of this bond was therefore illegal."
The next case which falls for consideration is the case relied upon by Mr. Talukdar, the case of Kamala Pandey v. The King. In this judgment his Lordship the Chief Justice made the following observation
"The petitioner was eventually granted bail by this learned Sessions judge, but granted bail upon a condition, namely, that he did not leave the limits of the town of Midnapore. Had the petitioner been living in Midnapore no objection could be taken to this condition. But the petitioner is an inhabitant of Midnapore, but lived with his family at Kharagpur. Imposing a condition that he should not leave Midnapore is practically tantamount to refusing bail. How can a man in ordinary circumstances afford to live at Midnapore when his family lived at Kharagpur and in all probability his sole means of livelihood was at Kharagpur?
"It is suggested that this petitioner has broken this condition on two occasions ; but it appears to me that it is a condition which should‑ never be imposed. The learned Sessions Judge justifies the condition because it is alleged that the petitioner will tamper with the witnesses at Kharagpur. It is common knowledge that in every bail case the Police alleged that there is a danger of tampering with witnesses, and if witnesses can be tampered with in this way, it does not speak very highly of the efficiency of the Police. I cannot see what real danger there is in granting this man bail when his co‑accused has been granted bail. Why is not there a danger that Nageswar will tamper with witnesses ?
"As I have said the condition imposed, though on the face of it an innocent one, really makes it impossible for the petitioner to comply with it. In cases of this sort the Sessions judge should make up his mind whether he is going to grant bail or reject it. Granting bail with a condition such as this which no person can possibly comply with is, as I have said, tantamount to refusing the bail and in such cases the Sessions judge should refuse the bail rather than impose this sort of condition."
As Mr. Roy has observed, we do not get any help from this decision on the relevant question as to whether bail can legally be granted on certain conditions except by Implication in that the Hon'ble Chief Justice stated : ".Had the petitioner been living in Midnapore no objection could be taken to :this condition," and "granting bail with a condition such as this which no person can possibly comply with is, as I have said tantamount to refusing the bail." From these extracts by implication, we can infer that the learned Chief Justice was of opinion that there was nothing illegal .in imposing conditions which could be complied with.
As opposed to the view of Mr. Justice Edgley, Mr. Roy cites the decision of Mr. Justice Munir as set out in the case of Kimat Rai Sanwal Singh Khushalani v. Emperor (A I R (32) 1945 Lah. 215), a judgment of the Hon'ble judge sitting singly and one in which he considers the decision of Edgley, J. in the case of Gyani Meher Singh v. Emperor. From this judgment Mr. Roy takes the following extract:
"The first point taken by the learned counsel for the petitioner is that the condition imposed by the Magistrate requiring the petitioner to attend the investigation, when needed, is illegal. He says that no such condition is con templated by the Code and that when a Magistrate admits an accused person to bail before investigation
by the Police is completed he can only require the accused person to attend a Court, the Court of Sessions or the High Court and not a Police Station or a Police Office. Reliance in this con nection is placed on section 499, Criminal P. C. and the deci sion of Edgley, J. reported in A I R (1939) Cal. 714 : I L R (1939) 2 Cal. 42 : 185 I C 249, Gyani Meher Singh v. Emperor. After hearing him at length on the point I have come to the conclusion that this contention is without substance and that the Magistrate admitting an accused person to bail before the completion of the investigation is competent to require him to appear before the Police when needed. Under section 497, Criminal P. C. wheel any person accused of any non‑bailable offence is arrested or detained without warrant by an Officer‑in‑charge of Police Station, he may be released on bail by that Officer. Section 499 of the Code provides that before any person is released on bail, a bond with one or more sufficient sureties shall be executed by him binding himself to attend at the time and place mentioned in the bond. It is, therefore, clear that if an accused person is admitted to bail by an Officer‑in‑charge of a Police Station, the Officer can require him to execute a bond with one or more sureties binding him to appear before himself or before a Court.
"As already pointed out, the investigation in this case has not as yet been completed and, therefore, if the order under revision had been made not by a Magistrate but by a Police Officer‑in‑charge of a Police Station and it is admitted by the learned counsel for the petitioner that such order could be made by such Police Officer himself‑the condition imposed or, the petitioner would have been perfectly legal if that condition merely directed the petitioner to attend the Police Officer 'or Police Station when required by the Police. Officer. That being so, there is no reason why this condition 'which, if imposed by the Police Officer, would have been legal should become illegal merely because it is imposed by the Magistrate who has the same jurisdiction under section 497, Criminal P. C. The words of section 499 are wide enough to include a Police Station or a Police Officer among the places which an accused person executing a bail bond may be required to attend. The section does not in express terms say that the accused can only be required to attend a Court, the Court of Session or the High Court. Though these three places are specifically mentioned in sub section (2) of section 499, that subsection is not exhaustive of the places to attend which an accused person may be bound but is merely inclusive of those places, the generality of the words 'shall attend at the time and place mentioned in the bond' in subsection (1) of that section not being affected by subsection (2). The case in A I R 1939 Cal. 714 is obviously distinguishable because the condition imposed by the Magistrate in that case was that the accused who was being tried for the offence of sedition would not, during the pendency of the case, make any speech and such condition is undoubtedly beyond the scope of section 499 of the Code. But if the decision in that case was intended to lay down that the only condition contemplated by a bail bond is a condition for attendance in Court and not before the Police while the offence is under investigation I must respectfully dissent from that decision."
Mr. Roy has also placed before us the decision of Mr. Justice Grille‑in the case of Adkoo Umrao Kalar v. Emperor (A I R 1936 Nag. 420). This case, however, does not afford any assistance as the head‑note of the case indicates : "The provisions of section 499 are not exhaustive and do not override the inherent powers of the High Court in the matter of bail. There are no restrictions on the High Court in the matter of imposing conditions on which it grants bail, and there is no irregularity in the High Court directing that the sureties shall be responsible for the production of‑an accused person on bail in the High Court and for his subsequent production in the Court of the District Magistrate of the District where he was tried to hear the reserved judgment in his appeal. A bond which directs the appearance of the accused not only in the High Court but in such Court in which the High Court might direct him to appear is therefore valid." As this judgment deals with the inherent powers of a High Court, it is of no assistance to us in determining what are the powers of Subordinate Courts under section 499 of the Code of Criminal Procedure.
Nor does the decision of Dhable, J. in the ease of Ram Bilas Sharma and others v.. Emperor (A I R 1940 Pat. 375) afford us any help. That judgment recites:
"The petitioners stood bail for certain persons accused of offences under sections 143 and 447, Penal Code. Before accepting the bail bonds into which they entered, the learned Magistrate who took the bonds made it clear that the release of the accused persons was to be conditional. The Court Sub -Inspector had prayed that the bailors' fitness might be enquir ed into, and the Magistrate dial not consider this necessary, especially when the bailors were substantial people. As regards the conditional release of the accused persons he added:
"The ballors undertake before me orally that they would keep the accused in Monghyr so that they may neither rejoin the Satyagraha at Lagar nor do they instigate others to join or carry on the movement there. I accept their undertaking on the distinct understanding that if any report is received showing contravention o: this undertaking I will at once cancel the bait and forfeit the bail amount. On this condition I accept the bail bond and order the release of the three accused on bail at once.
"This was a part of the order passed by the Magistrate on 7th July, 1939, and was signed in the margin by the bailors, the petitioners before me. On the 19th of the same month the Magistrate appears to have received a report from the Police saying that two of the accused persons had been to Gogri and had made arrangements for volunteers to be sent in batches to Lagar to offer Satyagraha. He thus found that the undertaking given by the bailors had been violated 'as the accused themselves say that they had gone to Gogri,' and he cancelled the bail bonds of those two accused persons and also forfeited the bail amount of Rs. 200 of the bailors. He further‑directed the issue of distress warrants at once for realization of the amounts. On the 24th July, the petitioners applied to the Magistrate and prayed for being exempted 'from the liability of paying penalty'. The application was apparently rested on the ground that the petitioners 'executed the bail bond in which there was nothing regarding the accused persons not going anywhere, that is, in ordinary course of business the bail bond had been executed,' though in the next paragraph of the appli cation it was said 'of course in the order‑sheet mention of the fact was made that the accused persons should not go to Lagar and take any part, etc."
"In the next paragraph it was stated that it appeared that Suresh Chandra Misra (one of the accused persons') went to Bihpur and thence to Gogri and met the Inspector of Police who asked him to go back to Monghyr and he at once came to Monghyr and surrendered before the Court and admitted his mistake in leaving Monghyr on some economical grounds. The learned Magistrate refused the application of the petitioners and noted that 'the conditions were explained to the bailors in Court and the latter put in their signatures in the order‑sheet." '
"Against the dismissal of the petitioners' application of 24th July to' the Sub‑Divisional Magistrate, an appeal was preferred to the District Magistrate. The argument in the appeal appears to have been that the bail bonds did not contain the conditions imposed by the Sub‑Divisional Magistrate, and that therefore the bail could not be forfeited for breach of those conditions. The learned District Magistrate dismissed this as a `merely technical argument to wriggle out of the situation." He dismissed the appeal.
"It has been contended by Mr. Shahi, who appears for the petitioners that the procedure followed by the Sub‑Divisional Magistrate, in holding the petitioners to their bond was wrong and that the petitioners should have been heard before the order of forfeiture was passed. This contention must clearly be accepted.
"The learned Advocate has further contended that the condition which I have quoted from the order‑sheet of the Magistrate form no part of the contract of bail and that the liability of the petitioners must be determined on the terms of the bail bonds themselves. But, if it be a fact that the petitioners signed the order‑sheet of the Magistrate against the part which contains the undertaking on which he accep ted the bail bonds, the order‑sheet with the petitioners' signatures itself becomes a part of the contract between the parties. If a contract is required to be in writing, it is not the law that it must be contained in one piece of writing alone and the full terms of contracts in writing have often to be gathered from a series of letters passing between the parties put together. I am therefore unable to accept the petitioners' contention that their liability is confined to the bail bonds alone, and I hold that bail was accepted, as the Magistrate put it in his order of 7th July, 'on the distinct understanding that if any report is received showing contra vention of this undertaking I will at once cancel the bail and forfeit the bail amount'."
In these circumstances, as will be seen from the remarks quoted, the case cited is one in which the bailor s volunteered an undertaking before the Magistrate that the accused persons would follow a certain line of…
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