The Magistrate's order directing the execution of interim bonds was illegal and arbitrary because the Magistrate had not conducted an inquiry or tested the allegations against the petitioners before directing them to execute the bonds.

JUDGEMENT

On a report dated 23-1-79 submitted by the Officer-in-charge of Kalunga Police Station in the district of Sundergarh, the Magistrate being satisfied that there was likelihood of apprehension of breach of peace, initiated a proceeding under Sec. 107 of the Criminal P.C. against the petitioner Nos. 3 to 7 and three others. That very day, an application was filed by the Officer-in-charge alleging that the members of the second party were illiterate advisasis and, therefore, they should be taken into custody by a direction for their immediate arrest, under the proviso to Sec. 113 of the Cr. P.C. and the learned Magistrate issued non-bailable warrants of arrest against them. On 21-2-79 the members of the second party except Bhona Topu in fear of arrest, appeared before the Magistrate and made a motion for being enlarged on bail. They were asked by the Magistrate to produce bailors without directing in his order or intimating the party for what amount each was to be enlarged on bail. One Budhuram Oram was offered as a bailor and on the materials placed before the Magistrate, he found that the said bailor was solvent to the extent of Rs. 30,000/-, but rejected him on the ground that he was not solvent to the extent of Rs. 35,000/- i.e. at the rate of Rs. 5,000/- for each member. According to the petitioners, the record is replete with acts and omissions constituting harassment of the members of the second party who were illiterate adivasis. However, when it was found that the bailor was solvent only to the extent of Rs. 30,000/- and not to Rs. 35,000/-, the bail application moved by the seven of the second party members was rejected and the delinquents except the female member, Guhi Gramin, were directed to be taken into jail custody. Some time later that day, the delinquents produced another bailor who was solvent to the extent of Rs. 50,000/- and the Magistrate directed their release on bail.

2. Curiously, however, before actually setting them free, the Magistrate directed the second party members, who appeared before him that day, to execute interim bonds forthwith for Rs. 5,000/- each for keeping peace. The counsel for the petitioners submits that the second party members who were still in custody had no other alternative, but to execute the bonds and they were enlarged on bail thereafter.

3. Bail amount of Rs. 5,000/- in a proceeding under Sec. 107 of the Criminal P.C. and especially when the delinquents are illiterate adivasis exhibits an attitude of judicial arbitrariness deprivatory of liberty. It is worth recalling the words of the Supreme Court :-

"... the grant of bail can be stultified or made impossibly inconvenient and expensive if the court is powerless to dispense with surety or to receive an Indian bailor across the district borders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive. The problem is plainly one of human rights, especially freedom vis-a-vis the lowly."

The Supreme Court, referred with approval, to certain observations made in the report of the Legal Aid Committee appointed by the Government of Gujarat in 1971. The following observations are worth bearing in mind :-

".... The Magistrate must always bear in mind that monetary bail is not a necessary element of the criminal process. The Magistrate must abandon the antiquated concept under which pretrial release could be ordered only against monetary bail. That concept is out-dated and experience has shown that it has done more harm than good. If a Magistrate is satisfied after making an enquiry into the condition and background of the accused, that the accused has his roots in the community and is not likely to abscond, he can safely release the accused on order to appear or on his own recognizance……"

And in that context the Supreme Court reminded the Gandhian talisman :

"Whenever you are in doubt…… apply the following test. Recall the face of the poorest and the weakest man whom you may have seen