The Allahabad High Court allowed an application seeking lowering surety and said every trial court is obligated to satisfy itself about the socioeconomic conditions of the prisoner when setting sureties.
A single-judge bench of Justice Ajay Bhanot passed this order while hearing an application under section 482 filed by Arvind Singh.
The applicant is an employee of the offending company and had no role to pay in fraudulent policies for those responsible in day-to-day functioning of the company.
The applicant has been enlarged on bail in all six cases against him. The trial court has set a separate surety in each case. However, he has not been set at liberty as he is unable to arrange sureties in aforesaid six cases since he is poor. The cases are connected to the offences committed by the company against different investors.
The prayer made by Nikhil Sonkar, the counsel for the applicant, is that the applicant may be permitted to produce a single surety for the six cases so that he can be let out on bail.
The counsel contended that he cannot make good the said demand of six separate sureties due to financial penury. Relying on various authorities of constitutional courts, it is submitted that the demand of six sureties is arbitrary.
AGA contends that sureties serve an important role. But admitted sureties should be reasonable.
The Court noted the right of bail is entrenched in the charter of fundamental liberties of the Constitution by high judicial authorities. The necessity of appropriate sureties for a criminal trial cannot be denied. The trial court while determining the sureties needs to satisfy twin requirements.The trial court has to balance and correlate the imperative of setting prisoners at liberty pursuant to the bail order and securing their fundamental rights with the demand of producing adequate sureties as an assurance of their regular attendance at the trial and a deterrence against flight from justice.
The trial court should factor the socioeconomic circumstances of the prisoner while fixing sureties. Many persons belonging to the downtrodden sections simply do not have requisite social standing to arrange multiple sureties, or the financial clout to satisfy prohibitive surety demands. Persons belonging to poor economic strata or socially marginalized segments of the society may not be set at liberty despite being enlarged on bail in case inordinate sureties are demanded of them or they are required to submit multiple sureties.
Onerous surety conditions which have no connection with the socio-economic status of the prisoner will negate the order granting bail, and undermine the fundamental right of liberty of the prisoner guaranteed under Article 21 of the Constitution. The purpose of sureties is dissuasive in intent, but unrealistic surety demands are punitive in effect. The Constitution does not put a price tag on liberty.
The report of legal aid committee headed by Justice P.N. Bhagwati, as the then CJ of Gujarat High Court and later the Chief Justice of India, dealt into the infirmities in the system of bail which put liberty beyond the reach of poor prisoners since they could not furnish bail even in a small amount.
The endeavour to redeem the constitutional promise of equality for all citizens and a realistic understanding of the socio-economic landscape of the country underlay the discussion on the rationale and the scope of sureties in a bail in Moti Ram and others Vs State of Madhya Pradesh reported at (1978) 4 SCC 47.
The narrative in Moti Ram (supra) commenced with a ringing endorsement of the Gujarat Report (supra).
Moti Ram (supra) opined that bail is comprehensive enough to cover release on one’s own bond with or without surety.
The Court said despite unequivocal holdings of various constitutional courts, the trial courts continue to adopt a rote response to a dynamic problem and approach the issue of fixation of sureties in a mechanical manner and neglect to make requisite inquiries as contemplated in the preceding parts of the judgment.
The duties of the trial courts as well as other agencies while fixing sureties can be summed up as under:-
(1) In case a prisoner cannot arrange the sureties fixed by the trial court the former can make an application to the trial court for a lesser surety. Material facts relating to the socioeconomic status and roots in the community of the prisoner shall be stated in the application.
(2) Similarly it is a bounden duty of the DLSA to examine the status of the prisoners who have been enlarged on bail but are not set at liberty within seven days of the bail order. In case the prisoners cannot arrange for sureties they may be advised and assisted to promptly move an application for refixation of the surety in light of this judgment.
(3) Once the prisoner makes such application the trial court shall make an enquiry consistent with this judgment and pass a reasoned order depicting consideration of relevant criteria for fixing sureties with utmost expedition.
(4) Every trial court is under an obligation to satisfy itself about the socioeconomic conditions of the prisoner and probability of absconding and his roots in the community and fix sureties commensurate with the same. The State authorities or other credible agencies as the court may direct to promptly provide the requisite details.
(5). In case the prisoner is from another State and is unable to produce local sureties, sureties from the prisoner’s home district or any other place of his choice determined by the court of competent jurisdiction of the said district and State shall be accepted by the trial court.
(6) The prisoner/counsel may state the details of the socioeconomic status of the prisoner in the bail application in the first instance. This will facilitate an expeditious consideration of the issue related to sureties.
“In the wake of the submissions made by counsel for the applicant and the preceding discussion, the Court finds that the demand of multiple sureties made by the trial court was onerous and is unsustainable in law.
The right of fundamental liberties of the applicant are being curtailed on account of his poverty and inability to arrange multiple sureties for cases instituted against him,” the Court observed while allowing the application.
The Court further observed the preceding discussion underlines the significance of the judgments of the constitutional courts, but also underscores the limitations of the judicial process. Judgments of the courts cannot be a substitute for legislative enactments on the issue of developing alternative deterrence against flight from justice apart from the exclusive concept of risk of monetary loss. The observations in Hussainara Khatoon (supra) regarding the responsibility of the Parliament in this regard also need to be reiterated.
The road from the seat of learning to the temple of justice cannot be long. True knowledge serves all. Institutions engaged in the study and research of law like J.T.R.I Lucknow also need to address various live issues which confront the courts by undertaking detailed research. Endeavours of this nature will make academic research more fruitful, and enrich the legal process. The issue of fixing of sureties is one which arises time and again. Some issues that need greater study are as under.
(i) Empirical studies on correlation of socio-economic conditions of the prisoners and ability to produce sureties.
(ii) The cases in which the prisoners who were granted bail but could not be set free or set at liberty after delay on account of their inability to arrange for sureties.
(iii) Method and criteria for determination of socioeconomic conditions and social roots of the prisoner. Role of State authorities and other credible agencies to assist in determination of socioeconomic condition and social roots of the prisoner in an expeditious manner to avoid delays. Feasibility of drawing up a format in which the prisoner may provide the necessary details regarding the same while instituting the bail application.
(iv) Alternative methods including technological solutions which may ensure appearance of under trials or enable ascertainment of their locations or deter flight from justice without insisting on high surety demands.
(v) Comparative studies of different systems of bails prevalent in other States and countries and the efficacy of such systems.
(vi) Any other related issues.