JUDGMENT :

Dinesh Kumar Sharma, J.

1. This is an application seeking release of the petitioner on furnishing personal bond only.

2. Learned counsel for the petitioner submits that the accused-petitioner has already been in custody for the last over 5 years. It has been submitted that the petitioner was granted bail by the learned Sessions Court vide order dated 02.05.2022 on furnishing his personal bond in the sum of Rs.20,000/- with two sureties of the like amount. The petitioner was not able to fulfill the bail conditions and therefore an application under section 441 Cr.P.C. dated 28.05.2022 was moved. On this application, the learned Trial Court was pleased to direct that the petitioner may be released on furnishing of personal bond in the sum of Rs.10,000/- with two sureties of the like amount. However, the petitioner was still not able to comply and furnish the two sureties of Rs.10,000/- each. Subsequently the petitioner moved yet another application before the learned Trial Court seeking his release on personal bond only which was partly allowed vide order dated 11.07.2022 and the number of sureties were reduced from two to one.

3. Aggrieved and unable to provide any surety the petitioner has now moved this Court praying that he may be released on bail on furnishing his personal bond as his parents are old and infirm and as he has no other person to stand as surety for him. Learned counsel for the petitioner submits that the petitioner was a mere daily wager at the time of his arrest and belongs to very poor strata of society. It has been further submitted that the petitioner is the sole bread earner of the family, and the sustenance of his old and ailing parents are dependent on him.

4. In the status report filed on 08.10.2022, the SHO PS Jyoti Nagar has verified that the petitioner is a resident of House No. 10/15, Kabul Nagar, Behta Hazipur, Loni Ghaziabad, U.P.

5. Learned counsel for the petitioner submits that as per his instructions, the material witnesses have already been examined. The order dated 02.05.2022 also indicates that the material witnesses have already been examined and they have not fully supported the case of the prosecution.

6. The petitioner is in custody since 23.07.2017 i.e., for the last over 5 years. He has been granted bail vide order dated 02.05.2022. However, despite having a bail order in his favour he still remains incarcerated merely because he has been unable to furnish surety. The petitioner cannot be punished for not being able to afford to procure the bail amount or manage a surety of sufficient prosperity.

7. In Moti Ram v. State of M.P., (1978) 4 SCC 47, the Supreme Court has inter alia held as under :

“24. Primarily Chapter XXXIII is the nidus of the law of bail. Section 436 of the Code speaks of bail but the proviso makes a contradistinction between “bail” and “own bond without sureties”. Even here there is an ambiguity, because even the proviso comes in only if, as indicated in the substantive part, the accused in a bailable offence “is prepared to give bail”. Here, “bail” suggests “with or without sureties”. And, “bail bond” in Section 436(2) covers own bond. Section 437(2) blandly speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and women. It cannot be that a small boy or sinking invalid or pardanashin should be refused release and suffer stress and distress in prison unless sureties are haled into a far-off court with obligation for frequent appearance: “Bail” there suggests release, the accent being on undertaking to appear when directed, not on the production of sureties. But Section 437(2) distinguishes between bail and bond without sureties

25. Section 445 suggests, especially read with the marginal note, that deposit of money will do duty for bond “with or without sureties”. Section 441(1) of the Code may appear to be a stumbling block in the way of the liberal interpretation of bail as covering own bond with and without suretie