JUDGMENT

KRISHNA IYER, J.:— "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread" lampooned Anatole France. The reality of this caricature of equal justice under the law, whereby the poor are priced out of their liberty in the justice market, is the grievance of the petitioner. His criminal appeal pends in this Court and he has obtained an order for bail in his favour "to the satisfaction of Chief Judicial Magistrate." The direction of this Court did not spell out the details of the bail, and so, the Magistrate ordered that a surety in a sum of Rs. 10,000/- be produced which, in actual impact, was a double denial of the bail benefit. For one thing the miserable mason, the petitioner before us, could not afford to procure that huge sum or manage a surety of sufficient prosperity. Affluents do not befriend indigents. For another; the Magistrate made an odd order refusing to accept the suretyship of the petitioners brother because he and his assets were in another district.

2. If mason and millionaire were treated alike, egregious inegality is an inevitability. Likewise, geographic allergy at the judicial level makes mockery of equal protection of the laws within the territory of India. India is one and not a conglomeration of districts, untouchably apart.

3. When this Courts order for release was thus frustrated by Magisterial intransigence the prisoner moved this Court again to modify the original order "to the extent that petitioner be released on furnishing surety to the tune of Rs. 2,000/- or on executing a personal bond or pass any other order or direction as this Honble court may deem fit and proper." From this factual matrix three legal issues arise (1) Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond without sureties, a person undergoing incarceration for a non-bailable offence either as undertrial or as convict who has appealed or sought special leave? (2) If the Court decides to grant bail with sureties, what criteria should guide it in quantifying the amount of bail, and (3) Is it within the power of the court to reject a surety because he or his estate is situate in a different district or State?

4. This formulation turns the focus on an aspect of liberty bearing on bail jurisprudence. The victims, when suretyship is insisted on or heavy sums are demanded by way of bail or local bailors alone are persona grata, may well be the weaker segments of society like the proletariat, the linguistic and other minorities and distant denizens from the far corners of our country with its vast diversity. In fact 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. This poignant import of the problem persuaded the Chamber Judge* to invite the SC Bar Association and the Citizens for Democracy to assist the Court in decoding the Code and its provisions regarding bail. The Kerala State Bar Federation was permitted to intervene and counsel for the parties also made submissions. We record our appreciation of the amici curiae for their services and proceed to discuss the triple issues formulated above.

* Justice V. R. Krishna Iyer.

5. There is already a direction for grant of bail by this Court in favour of the petitioner and so the merits of that matter do not have to be examined now. It is a sombre reflection that many little Indians are forced into long cellular servitude for little offences because trials never conclude and bailors are beyond their meagre means. The new awareness about human rights imparts to what might appear to be a small concern relating to small men a deeper meaning. That is why we