Delhi High Court

Arinze Bernard Emenike vs Akhilesh K.Mishra on 28 April, 2009

Author: Mool Chand Garg

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+       Crl.M.A.4057/2009 in Bail Application No. 184/2009


%                                    Date of reserve : 22.04.2009
                                     Date of decision: 28.04.2009


       Arinze Bernard Emenike                    ...PETITIONER
                       Through:             Mr.Manish Khanna, Advocate


                                       Versus


       Akhilesh K.Mishra               ...RESPONDENT
                      Through: Mr.Narender Singh, Special PP/NCB


CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers Yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?                    Yes

3.     Whether the judgment should be                        Yes
       reported in the Digest?


MOOL CHAND GARG, J.

1. This is application under Section 445 read with Section 482

Cr.P.C. for conversion of the condition of surety to cash surety in

bail order dated 18th March, 2009, vide which the

applicant/petitioner was directed to be released on bail on

furnishing bail bond in the sum of Rs.50,000/- with one surety in the

like amount to the satisfaction of the concerned court.

2. It is submitted on behalf of the applicant that the

applicant/accused was arrested for the offence of having 344 gram

of heroin on 29.08.2007 and he was granted bail by this Court vide

order 18th March, 2009. However, the petitioner could not avail of

the bail order as he is a foreigner and has been unable to procure a

suitable surety. It is prayed on his behalf that the condition of

surety be altered to cash surety. It is also submitted that the

applicant has already been behind bars for more than 15 months. It

is also submitted that the applicant should not be punished because

he cannot procure a personal surety in a foreign land. The personal

surety cannot provide any additional safety to the argument that

the applicant may abscond. It is further submitted that the even if

the applicant is to abscond, the personal surety is only liable for the

amount of money being put. The personal surety cannot be made

liable under any law for any punishment. The arguments that the

personal surety shall be able to tell the address of the applicant can

only be an argument because the passport of the applicant is

already with the prosecution as well as on the file of the trial court

and the same has the address of the applicant. It is further prayed

that in such situations cash sureties be allowed because otherwise it

can have the disastrous affect of people bringing in false sureties.

3. Counsel for the applicant in support of his case has relied

upon the following judgments:-

(1) Babu Singh & Ors. Vs. State of Uttar Pradesh, AIR 1978 SC 527.

(2) Crl.M.A. No. 4387/2008 in Bail Application No. 320/2008 titled as Obinkons Emma Vs. NCB, decided on 8.4.2008.

(3) Mr. Agali E. Samki Vs. The State (NCT of Delhi), 2006 (3) JCC 1292.

(4) Shokhista Vs. State, 2005 (3) JCC 1612.

4. Counsel for the NCB has strongly opposed the present

application and has relied upon the judgment of this Court in

Charles Sobhraj Vs. State, 63 (1996) Delhi Law Times 91.

5. In the aforesaid case the petitioner was arrested for the

offences of having 344 gm of heroine on 29.08.2007. Even if the

petitioner is held to have committed an offence which involves

intermediary quantity as has been pleaded on behalf of the

petitioner and which is the basis of granting him bail he can still

be sentenced to undergo R.I. for 10 years. He is a foreign

national. In the case of Charles Shobhraj Vs. State 63 (1996) DLT

91 this Court while examining the question of releasing an

accused on cash surety for the purpose of releasing him on bail

has been pleased to observe:

(6) But then, all said and done, a few things need to be noticed. The object of requiring an accused to give security for his appearance in Court is not to secure the payment of money to the State, for that is a secondary consideration, but to secure the presence of a person facing trial. Thus the primary consideration is the personal element of the surety or sureties concerned as the Court expects the surety to see that the accused appears on the date fixed and also that the surety will take steps for getting the accused arrested in case of any attempt on the part of the accused to abscond or to avoid attendance in Court. As observed by Alvorstone, Lord Chief Justice of England in King v. Porter, (1910) I Kb 369, it is to the interest of the public that criminals should be brought to justice, and thereforee that it should be made as difficult as possible for a criminal to abscond. Responsibility is fixed on the sureties to see that such a person does not escape. A duty is thus cast on the Court, in accepting or rejecting a surety, to see the sureties are solvent and persons of sufficient vigilance to secure the appearance and prevent the absconding of the accused.

(7) The principal purpose of bail being to secure that the accused person will return for trial if he is released after arrest, this consideration is not lost sight of in the provisions of section 445 of the

Code. It is only an enabling section, and provides that a Court or officer may permit a person to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing a bond except in cases where the bond is for good behaviour. Surely, we cannot and must not lose sight of the word "may" which indicates that accepting the deposit of money in lieu of surety is left to the discretion of the Court and that consequently the acceptance of deposit of money is not obligatory and the relief is to be granted only where the Court thinks fit to substitute a cash security. While considering the question of fitness, principal purpose of bail as underlined above, would always remain a paramount consideration. In short thus besides the question as to whether the accused can find sureties or not, the Court shall have to keep in mind the question as to whether the prisoner is likely to abscond or not and while meditating on the last question the Court may take into account various factors concerning him like the nature and circumstances of the offence charged, the weight of the evidence against him, length of his residence in the community, his family ties, employment, financial resources, character and mental condition, his record of convictions, reputation, character and his records of appearance at Court proceedings or flight to avoid prosecution or failure to appear at Court proceedings.

6. Insofar as the judgment in Babu Singh & Ors. Vs. State of

Uttar Pradesh, AIR 1978 SC 527 is concerned, it has no

application on the facts of this case as it was given in the peculiar

facts of that particular case. In any event, the law has to be laid

down in consonance with the facts of each and every case.

7. I have also gone into the judgment cited on behalf of the

petitioner. Insofar as the judgment delivered in the case of

Obinkons Emma Vs. NCB, Bail Appn. No.320/2008 decided on

12.03.2008. The concerned order in that case to accept the cash

security was granted by the learned Single Judge of this Court

because the respondents gave no objection to the said proposal.

8. In the case of Mr. Agali E. Samki Vs. The State (NCT of