1. This criminal revision application is directed against the order dated 6-3-1978, passed by the Sessions Judge, Kamrup, Gauhati, cancelling the bail granted to the accused-petitioner by the Chief Judicial Magistrate by his order dated 3-3-1978 in G. R. Case No. 725 of 1978, which relates to possession and carrying of 259 KGs of ivory purchased from the Forest Department, Assam by one Samson Das and subsequently sold to the petitioner for Rs. 1,18,000/-.
2. On a bail petition moved before him, the Chief Judicial Magistrate by his order dated 3-3-1978 allowed the accused-petitioner to go on cash bail of Rupees 8,000/- "as he is a man from outside the State". Later, on, Sri Brij Das, deposited the entire Rs. 8,000/- in cash which was received by the Assistant Nazir and was kept in safe custody. It appears from the records that no bond was executed at this stage.
3. On 4-3-1978, an application was moved before the learned Sessions Judge, who fixed 6-3-1978 for its hearing. It appears that some attempt was made to serve notice on the petitioner at the Rajhansh Hotel, where he hitherto stayed; but he was not found there, he having left the hotel in the meantime. On 6-3-1978, the learned Sessions Judge ex parte, hearing the Public Prosecutor, observed that when a person is released on bail by the court, it must impose some conditions in order to secure his attendance in terms of the bond executed. But in the instant case, no such bond was executed by the surety. Only one Brijdas, claiming to be a man of Banaras filed a petition stating that he deposited Rs. 8,000/-, but there was no condition or assurance of producing the accused Gokul Das in the court as may be directed by the court. As a result, the learned Judge observed that Gokul Das was released for good. Even Brij Das (an unidentified person) was not bound down with the condition of securing the attendance of the accused Gokul Das in compliance with any security bond. No security bond was executed at all in this case. The court further observed that provision of Sub-section (3) of Section 437, Cr. P.C. was not complied with, there being no instrument by virtue of which the Chief Judicial Magistrate could ask anybody to produce the accused Gokul Das before his court. Accordingly, taking into consideration the provisions of Section 439(2), Cr. P.C. the bail order dated 3-3-1978 was set aside and the bail of the accused petitioner Gokul Das was cancelled; and the Chief Judicial Magistrate was directed to issue warrant of arrest immediately against the accused Gokul Das and to commit him to custody. Further he directed the Chief Judicial Magistrate to ask Brij Das to produce the accused before his court, failing which the Chief Judicial Magistrate should take action for forfeiting the cash security furnished by him.
4. Against this order, this Rule was obtained on 22-3-78 and this Court was pleased to stay the operation of the impugned order, subject to the condition that the petitioner shall make himself available if and when required by the police during investigation.
5. It is admitted by both sides that that petitioner has since been appearing in court on the dates of hearing and on 23-3-78 he executed a bond in court of the Chief Judicial Magistrate, Kamrup, Gauhati undertaking to appear in his court or any other court on 22-4-78 and on each subsequent date, failing which he shall be liable to forfeit the sum of Rs. 8000/- to the State of Assam.
6. The learned Public Prosecutor states that charge sheet has since been submitted in this case and the trial is proceeding according to law.
7. Mr. J.P. Bhattacharjee, the learned Counsel appearing for the petitioner, submits that the impugned order is clearly violative of the principle of natural justice and as such illegal and void. Counsel further submits that the Criminal Procedure Code envisages cash bail and the Chief Judicial Magistrate committed no error in releasing the accused petitioner on cash bail and the cancellation was illegal and liable to be set aside.
8. Mr. C.R.C.E., Public Prosecutor, answers that the Sessions Judge had no alternative than to cancel the bail as there was no means to procure attendance of the accused.
9. Chapter XXXIII of the Cr. P.C. (1973) deals with bail. A person is said to be admitted to bail when he is released from the custody of the officers of law and entrusted to private custody of persons called his bail. In other words, bail means to release a person from custody or prison or detention under some kind of restraint and deliver him into the hands of sureties called 'bail' who bind themselves for his due appearance when required. The provisions as to bail are designed to achieve this purpose.
10. Section 436 Cr. P.C. provides in what cases bail is to be taken from a person. It further provides that if the officer or court thinks fit, he or it may, instead of taking bail from a person, discharge him on executing a bond without sureties for his appearance. Section 437 lays down, when bail may be taken in case of non-bailable offence and when conditions may be imposed. Section 438 provides for anticipatory bail. Section 439 prescribes the special powers of High Court or Court of Sessions regarding bail. Section 440 provides that the amount of every bond executed under the Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive. Section 441 deals with bond of the accused and sureties as follows:
441. (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 may be.
(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Sessions or other Court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by the Magistrate subordinate to the Court, as to such sufficiency or fitness.
11. The section contemplates (i) the furnishing of a personal bond by the accused and (ii) a bond by one or more sufficient sureties. Section 445 provides for taking of deposit instead of recognizance. When any person is required by any court or officer to execute a bond, with or without sureties, such court or officer may, except in case of bail bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amounts as the court or officer may fix, in lieu of executing such bond. Thus, under this section the court has the discretion to allow the accused to deposit payment in cash or Government promissory notes if he offers it when he is unable to produce sureties, except when the bond is for good behaviour. This concession is available only to the accused and not to sureties.
12. Thus, it will be seen that an accused person may be released on bail, or on his own bond or recognizance, or on deposit of cash or Government promissory note in lieu of execution of a bond. In all these cases there is the obligation of the accused to make himself available for trial. Whether the court will be satisfied with one or the other will depend upon the facts and circumstances of the case and if the court is so satisfied it cannot be said to have acted without jurisdiction, so as to merit interference in revision.
13. In the instant case, it is clear from the language used by the order dated 3-3-1978, that the petitioner was allowed to deposit Rs. 8,000/- in cash, he being a man from outside the State. The implications were quite clear. If he failed to appear at the date fixed for trial or at the subsequent dates of the case, he would forfeit that amount. The Court accepted the deposit considering the nature and gravity of the case, including the fact that the petitioner was a man from outside the State. This order having been passed on 3-3-1978, there appears to have been no occasion for insisting the court to revise its own decision as to the system of bail. The revision petition against the order granting bail did not properly analyse this aspect of the question. The case arose out of the fact that precious ivory weighing 259 Kgs. which was on record to have been purchased by one Samson Das for use in his own factory, there being therefore, a clear bar against transfer of the same, the learned Sessions Court perhaps thought that the cash deposit was inadequate and therefore it ordered as stated above. There was of course no bond executed by the accused petitioner undertaking (sic) contends that the Sessions Judge was fully justified in passing the impugned order in view of the nature of involvement in the case and particularly the fact that there was no way left for ensuring the attendance of the petitioner at the trial.
14. From the relevant provisions of the Cr. P.C. there is no doubt that cash deposit in lieu of execution of a bond by the accused is an alternative system of granting bail and can be stated to be no less efficacious than granting bail of certain amount with or without surety or sureties of the like amount. On the other hand, in the cash deposit system, the cash is deposited right down and in the event of the accused's failure to appear, the court has the least trouble to realise as the amount is already in its custody. In case of bail on personal bond of recognisance the court has to rely on the personal promise. Under bail with surety, in case of failure to appear on the part of the accused, the court has power to realise the amount from the surety.
15. In the case, the cash deposit system having been accepted by the court, there was no reason for it to have changed its mind, and to that extent it cannot be said that setting aside of the cash bail was legal. Apart from the question of violation of natural justice, the learned Public Prosecutor points out that on 4-3-1978, when enquired at Rajhansh Hotel, the petitioner was reported to have already left it. This by no means can be taken exception to, he having furnished Rs. 8,000/- as cash security as accepted by the court. The court was also not justified in observing that there was no means to ensure the attendance of the accused in view of the fact that Rs. 8,000/- was already deposited by the accused and the same was already in the custody of the court. It is, of course, a fact that the accused-petitioner later executed a bond on 23-3-1978, undertaking to appear at the trial.
16. In (1977) SCC 410 : 1978 Cri LJ 173 (Bashir v. State of Haryana) and (State v. Sanjay Gandhi) the consideration for
cancellation of bail have been formulated. In (Moti Ram v. State of M.P.) and (State v. Jagjit Singh) the relevant consideration for granting bail have been clearly analysed, The cash deposit system is equally efficacious as the other systems.
In the 1978 LLJ (SC) 606 : 1978 Cri LJ 844 it has been clearly stated that bail is not indirect way of punishment for an offence. In the instant case, it appears that while cancelling the bail more emphasis was given on the gravity of the offence,
17. It does not require any elaboration that the considerations for cancellation of bail are slightly different from those for granting bail. Once an order for bail is passed, law immediately puts a protective ring around it, so that it will not be cancelled without giving an opportunity to the person for whose benefit it was made. In the instant case, the impugned order was passed in utter disregard of this protective ring. The impugned order therefore cannot be sustained.
18. In the result, the impugned order is set aside but the petitioner shall continue to be bound by the bond executed by him on 23-3-1978. The Court shall be free and unfettered to impose any reasonable condition according to law to procure the attendance of the petitioner at the trial. The petition and the Rule are disposed of accordingly.