Judgment:
:
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 v. 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 in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. 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 surety bond is executed. It is believed that the surety comes forward 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.