Mandating Local Surety For Bail Of Person From Outside State Is 'Assault' On His Fundamental Rights: Punjab & Haryana High Court

The Punjab and Haryana High Court has held that mandating a local surety as a condition for bail amounts to an assault on the fundamental rights of a person.

The court said that such a requirement discriminates against individuals from other parts of the country solely on the basis of their residence.

In doing so, the Court quashed an FIR lodged under Sections 419 and 420 of the IPC (Cheating & Dishonest Inducement); Sections 467 & 468 of the IPC (Forgery with intent to Cheat); and Section 471 of the IPC (Using forged documents as genuine) in Haryana's Gurugram against two accused from Kolkata for allegedly furnishing forged documents of their local sureties for Bail.

It was submitted that being outsiders, the petitioners could not arrange sureties themselves and upon the assurance of their counsel, they relied upon two persons, introduced by their counsel

Justice Sumeet Goel said, "Mandating furnishing of a 'local surety' from an individual who is a native or resident of another district/State is not merely a logistical inconvenience; it is a profound assault on his fundamental rights and tantamount to imposition of an unduly onerous condition, which is, in itself, a de facto denial of the right to bail –– which ought to be accompanied by a practical means of securing it, not by insurmountable hurdles. It creates an unnecessary dichotomy, where an individual from one part of the Country is treated differently from another, simply by the dint of his or her residence."

Practice Of Local Surety Is Illogical 

The Court added that, the continued insistence on 'local surety(s)' is a judicial anachronism that flies in the face of Constitutional principles and the dictates of common sense.

"It inevitably engenders an infinite ingress of action(s), undertaken by a person to secure 'local surety' by all and any means to satisfy an illogical tenet of practice. It is a practice that needs to be consigned to oblivion. The Courts of law must not be held captive by a mechanical and archaic adherence to prevalent practices," the judge further said.

The Court clarified that it is not oblivious to the fact that this anachronistic practice often prompts rise to precarious and, at times, unethical arrangements. In a significant number of cases, the accused, who is a stranger to the jurisdiction, is compelled to procure a local surety through local counsel, leading to a situation where the surety is a complete stranger to the accused.

"This is a travesty of justice, for the very purpose of a surety –– to ensure the accused's appearance in Court –– is subverted when the bond is based on a transactional arrangement rather than procedural acquaintance of trust."

Court Must Not Adjudicate From Ivory Towers, It Must Resonate With Practicality

The bench said that, it is a well-established and universally acknowledged judicial principle that a Court ought not to adjudicate from an ivory tower and that the judicial decisions must resonate with the practical realities of Society rather than remain shackled to abstract interpretation(s) of legal doctrine(s).

"The Courts, indubitably hold a dual responsibility; to uphold rule of law as also to ensure that justice remains relevant and responsive to the dynamic conditions of Society. Application of the principles of adjudication coalesced with percipience towards the pragmatic and functional societal realities are of particular import in such cases. An adjudication without pragmatic lens runs the risk of prioritizing procedural/technical formalities over the substantive justice, which could eventuate in dilution of justice," it added.

In the present case the Court noted that, The offences under Sections 419 and 420 of the IPC (Cheating & Dishonest Inducement); Sections 467 & 468 of the IPC (Forgery with intent to Cheat); and Section 471 of the IPC (Using forged documents as genuine), are predicated upon the existence of a culpable mental state, or mens rea, as an indispensable ingredient –– which ought to be demonstrably established for a successful prosecution — and is not merely a peripheral consideration.

Perusing the records, it said that it "reveals a conspicuous absence of any mens rea that could be legitimately imputed to the petitioners."

"The factual matrix, as delineated in the record, is utterly devoid of any indica of a dishonest or fraudulent intent on part of the petitioners — in absence whereof, the very foundation of the allegations crumbles," it added.

Similarly, the bench noted that an offence under Section 120-B of the IPC (Criminal Conspiracy) mandates a 'prior meeting of minds' or a 'pre-meditated agreement' to perpetrate a criminal act.

It pointed that, the material which has come on record does not indicate any nexus between the petitioners and the sureties beyond their introduction through local counsel. It is trite law that where the allegations in the FIR and the accompanying material do not disclose the ingredients of any offence, the Court would be justified in invoking its inherent powers under Section 482 Cr.P.C. to prevent abuse of the process of law.

Justice Goel highlighted that the petitioners have not gained any benefit from the forged documents; they were permitted to furnish fresh personal bonds and the factum of the learned trial Court itself not attributing any culpability to the petitioners is, in essence, a sub silentio acknowledgment of the tenuousness of the prosecution's case against the petitioners.

In the light of the above, the Court quashed the FIR.

Mr. Rohit Madan, Advocate for the petitioner.

Mr. Vishal Singh, AAG Haryana.

Title: Sumit Sharma and another v. State of Haryana

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