Ramu Harishchandra Bawane vs Deputy Inspector General
2010 Latest Caselaw 212 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY:




                                              
                      NAGPUR BENCH : NAGPUR.

               Criminal Writ Petition No.576 of 2010




                               
     Ramu Harishchandra Bawane,
     Convict No. C/7354,
     Central Prison,ig
     Nagpur.                                    ....            Petitioner.

                                Versus
                  
     1.   Deputy Inspector General
          of Prisons [East Region],
          Nagpur.
      


     2.   The Superintendent,
   



          Central Prison,
          Nagpur.                               ....          Respondents.





                                *****

     Petition received by Post.

     Mr.   T.A.   Mirza,    Addl.        Public         Prosecutor             for





     respondents.
                                *****


                                 CORAM     :     A.H. JOSHI AND
                                                 A.R. JOSHI,JJ.

Date : 29th November, 2010.

ORAL JUDGMENT [Per A.H. Joshi, J.]:

1. Rule. Rule is made returnable forthwith. Heard

finally.

2. Petitioner is undergoing sentence for conviction in

Central Prison, Nagpur. On his application, he has been

granted furlough. He has been asked to furnish a surety

having his ordinary residence in Maharashtra. This seems

to have been

done in the background that petitioner is

domiciled of State of Gujarat. Petitioner is aggrieved by

the order directing that the surety should be of a person

who is an ordinary resident of Maharashtra.

3. We had directed learned APP to take instructions

from Deputy Inspector General of Prisons and suggest the

modalities which can be adopted in the case of present

nature to avoid insistence of surety of the nature ordered.

4. Learned APP has tendered an Affidavit-in-Reply.

th This affidavit accompanies copy of Govt. Circular dated 16

December, 2008.

It is prescribed in Direction No.6 contained in

this Circular that whenever the prisoner hails from other

State, a surety from State of Maharashtra be asked.

5. We have noticed that such a condition cannot be

validly enforced in the background of Judgment of Hon ble

Supreme Court in case of Moti Ram & others Vs. State of

Madhya Pradesh [AIR 1978 SC 1594], where the Hon ble Supreme

Court has held as follows:-

32. To add insult to injury, the magistrate has demanded sureties from his own district! (We assume the allegation in the petition). What is a Malayalees, Kannadiga,

Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass

Chowk?

in Bastar, Port Blair, Pahalgam or Chandni He cannot have sureties properties in these distant places.

owning He may not know any one there and might have come in

a batch or to seek a job or in a morcha, Judicial disruption of Indian unity is surest achieved by such provincial allergies. What law prescribes sureties from outside or non- regional language applications? What law

prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms,

sometimes, geographic, sometimes linguistic, sometimes legalistic. Art. 14 protects all Indians qua Indians, within the territory of India. Art. 350 sanctions representation to any authority, including a court, for redress

of grievances in any language used in the Union of India. Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid

legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland. Swaraj is made of united stuff.

6. Sum and substance of the dictum of Hon ble Apex

Court is that conditions, compliance whereof is akin to

impossible, should not be imposed, as such condition

operates as a clog on liberty.

7. Learned APP has argued that if the sureties from

other States are accepted, and prisoner flees away from

hands of law, it would be an endless job to catch hold of

such sureties and the prisoner after completion of his

parole.

8. We have analyzed and tested this argument of

learned APP.

We observe that this submission is, on the face of

it, fallacious.

9. The scheme of law of asking surety does not

contemplate that:-

[a] The sureties would themselves go to search and secure the physical presence of the prisoner.

[b] The sureties themselves to perform what the prisoner was to do.

[c] The sureties would watch and ward and / or monitor the prisoner round the clock.

10. In case of breach, the surety pays or loses the

amount of bond. What is contemplated while insisting on

surety bond is to ensure the moral pressure of the surety

on the mind and behaviour of the person whose promise and

conduct is assured by the surety.

11. By virtue of what the surety has done, i.e., he

undertook to be a surety, and has executed a bond etc.,

exerts a moral pressure on the person for whose freedom, the

comes forward

surety bond is executed. It is believed that the surety

to bind himself because the surety has

occasion to know the prisoner and there exists some

relations arising from some nexus, such as affinity,

friendship, relations by blood or marriage etc. Therefore,

the beneficiary is expected to take care of the prestige of

the promise of the surety.

12. When the prisoner does not have any such nexus with

the people in the State where he is imprisoned, such

sureties may either be hired or fictitious, and even when

genuine, would not render any help to further the cause of

asking of the sureties.

13. In order to overcome this situation, namely that

the prisoner does not flee from the hands of law, at the

same time his liberties are not abrogated, the State will

have to devise some modalities.

14. Wisdom is always a presumption in the power and

authority of rule-makers, and we hope it to flow from the

Executive while devising modalities. The Govt., ought, in

its rule-making power, devise such modalities as would be

workable, and would result in respecting the rights and

concessions of prisoner, and would also be efficacious in

proper working.

15.

We express that we need not formally strike down

the rule referred to in foregoing Paragraph No.4, however,

in view of what the Hon ble Supreme Court has held in Moti

Ram s case [cited supra], said condition be appropriately

substituted.

16. Learned APP, at this stage, urges that State be

given a longer time to take a decision. The request is

reasonable.

17. We grant ten weeks time to the Govt., to re-

consider the condition referred to herein before and give

further and appropriate directions within ten weeks from

today. Compliance be reported within two weeks thereafter.

18. Copy of this order be supplied to learned APP as

per rules for communication to the Principal Chief

Secretary, Home Department, Mantralaya, Mumbai, and due

compliance.

Rule is accordingly made absolute.

           JUDGE                                                JUDGE

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