Observing that it is an "extremely unfortunate case", the Chhattisgarh High Court recently ordered the release of three accused belonging to the Scheduled Tribe community who had been in jail for 6 years, even after grant of bail in April 2016.
A Division Bench of Justices Sanjay K. Agrawal and Rajanai Dubey noted that the incarceration continued due to their inability to furnish bail bonds on the ground of their poverty. Thus, the Court ordered that the accused be released on their executing only personal bond of Rs.5,000/-.
The bench also directed the Member Secretary, Chhattisgarh State Legal Services Authority and the Secretary, High Court Legal Services Committee to collect information from all the District Legal Services Authorities about the cases in which accused persons have been enlarged on bail but are still in jail due to their inability to furnish bail bonds; they have not been released from jail.
"Everyday we are coming across the cases in which despite order of this Court granting bail to the accused persons, they have not been released from jail. Report be submitted on or before 13.06.2022. This exercise be done within a period of four weeks and matter be listed for consideration on 15.06.2022," it ordered.
On the position of law, the Court commented that an Appellate Court, while considering an application filed under Section 389 of Cr.P.C. for suspension of sentence and grant of bail, is empowered to suspend the substantive jail sentence of a convicted person for the reasons to be recorded in the order, pending final disposal of pending criminal appeal if any. Moreover, if the accused is in confinement, they are released on bail or their bond (personal bond).
The appellants, belonging to the Scheduled Tribe community, were granted bail in April 2016 and were directed to furnish bail bonds with one solvent surety each for their release. However, because of the failure to furnish the bail bonds, the appellants are still in jail for more than size years. An interim application has been filed seeking permission to be released on personal bonds.
The court perused Section 389 (1) of CrPC, by which the sentence awarded to a convict can be suspended in the pending appeal, and he can be released on bail. It noted that a careful perusal of the provisions contained in Section 389(1) of CrPC would show that the Legislature has consciously empowered the Appellate Court to suspend the substantive jail sentence of a convicted person for the reasons to be recorded in the order, pending final disposal of the criminal appeal filed by him. If the accused is in confinement, he is released on bail or his bond. It is discretionary, and it is for the Appellate Court to decide whether an accused can be released on bail or his bond by suspending his substantive jail sentence.
The Court referred to the case of Moti Ram v. State of Uttar Pradesh, where it was held as follows,
"Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom, and indigent's rights, we hold that bail covers both release on one's bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables."
It also referred to the case of Hussainara Khatoon & Ors v. Home Secretary, State of Bihar, where it was held that an accused could be released on bail on his executing personal bond. Hussainara Khatoon had also referred to Moti Ram. He had given a list of considerations that should be kept in mind when determining the security or monetary obligation amount. It was further remarked,
"Perhaps, if this is done the abuses attendant on the prevailing system of pre-trial release in India could be avoided or, in any event, greatly reduced."
Therefore, it was concluded by the High Court that the Appellate Court, in the appropriate case, is fully empowered to release the convict on a persona; bond taking into account the nature and circumstance of offence charged, evidence available against the convict, his family background and financial condition, etc., to ensure his appearance in court as and when required.
Case Title: Bhawan Singh & Ors v. the State of Chhattisgarh
Citation: 2022 LiveLaw (Chh) 48
Read The Order