In order to ensure the presence of the accused during trial, courts often insist upon the accused to provide a surety while passing an order of the bail of the accused. The Bombay High Court in a recent decision [Subodh Prasad Urf Anil Chotu Jagdish Mahato v. State of Maharashtra] has declared that a mandatory condition to provide a local surety is violative of the law of the country. The High Court was dealing with a challenge to the validity of "Government Circular dated 16th December 2008, requiring the prisoners from other States to furnish local surety within the State of Maharashtra, for availing furlough leave".
The Bench inter alia observed as under;
7. Having considered the rival submissions, we have no difficulty in restating the well established position that to be released on furlough is a substantial and legal right conferred on the prisoner. At the same time, it will have to be borne in mind that the said right is not an absolute right. The Apex Court in the recent decision in the case of State of Maharashtra & Anr. vs. Suresh Pandurang Darvakar reported in (2006) 4 SCC 776 had occasion to observe that on bare reading of Rule 4(4) of the Prisoners (Bombay Furlough and Parole) Rules 1959, it indicates that release can be refused when the same is not recommended by the designated Authority on the ground of public peace and tranquility. It has also adverted to Rule 6 of the same Rules which provides that a prisoner shall not be granted furlough unless he has a relative willing to receive him while on furlough and is ready to enter into a surety bond in Form `A’ appended to Rules for such amount as may be fixed by the sanctioning Authority. Further, the proviso authorises the sanctioning Authority to dispense with the requirement of execution of such bond by relatives of prisoners confined in open prisons as defined in Rule 2(b) of the Maharashtra Open Prisons Rules, 1971. The Court went on to hold that the twin requirements flowing from Rule 6 are:
(a) a relative of the applicant should be willing to receive him while on furlough, and (b) he must be ready to enter into a surety bond.
8. The question is: whether the Circular pressed into service by the Respondent State dated 16th December 2008 impinges upon the right of the prisoner in any manner.
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11. On going through the Act of 1894 and the Statutory Rules framed by the State Government being Rules of 1959, there is no express provision which obligates the prisoner/convict from other States to offer local surety from Maharashtra. Such condition cannot be introduced by way of Government Circular. More so, when there is no express provision in the Act or for that matter the statutory Rules authorising the Executive to issue executive instructions to provide for additional conditions. (See Laxman Dundappa Dhamanekar & Anr. vs. Management of Vishwa Bharata Seva Samiti & Anr. reported in (2001) 8 SCC 378- Paragraph 9. Also see Ex.Captain K.Balasubramanian & Ors. vs. State of Tamil Nadu and Anr. reported in (1991) 2 SCC 708 Paras 6, 7 & 9 and Mannalal Jain vs. State of Assam & Ors. reported in AIR 1962 SC 386 – para 12). Insofar as the surety is concerned, the Criminal Manual provides for verification of solvency of sureties.
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12. It is well established position that unless the Act authorises issuance of executive instructions, it is not open to issue executive instructions so as to supplant the Rules. The provision such as contained in impugned Government Circular dated 16th December 2008 if were to be considered as mandatory requirement, it would result into supplanting the conditions specified in the Act and more particularly, in the Statutory Rules to enable the prisoners/convicts from outside Maharashtra to avail of furlough leave by providing only local surety from Maharashtra. In most of such cases, the prisoners/convicts may not be in a position to comply with the said condition which may have the inevitable effect of denying the said facility to such prisoners/convicts.
13. We may usefully invoke the analogy underlying the exposition of the Apex Court in the case of Moti Ram & Ors. vs. State of Madhya Pradesh reported in 1978 SCC (Cri.) 485. Somewhat similar grievance was considered by the Apex Court and frowned upon with heavy hand in the following words :
“33. To add insult to injury, the Magistrate has demanded sureties from his own district! (We assume the allegation in the petition). What is a Malayalee, 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. Article 14 protects all Indians qua Indians within the territory of India. Article 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.”
14. Suffice it to observe that if the argument of the Respondents were to be accepted, the effect of the condition specified in the impugned Circular would be to impose additional mandatory condition for availing of furlough leave and of amending the existing rule in vogue. That could be done only upon placing the proposed change before the State Legislature as is required under Rule 59(2) of the Rules. In absence thereof, the stipulation in the impugned notification cannot be acted upon and will be of no avail.
15. Taking any view of the matter, therefore, the argument of the Respondent State cannot be countenanced. The fact that the provisions in the Criminal Manual have been made very stringent in the backdrop of the experience of large number of absconding accused, to which reference has already been made hitherto, would be of no avail. Inasmuch as, the said provisions are relating to verification of solvency of sureties. The stipulations therein, in no manner, rule out the possibility of furnishing solvent surety who is residing outside Maharashtra. We also cannot countenance the argument that it is always open to the appropriate Authority to impose additional condition to furnish “local solvent surety” only from Maharashtra to enable the prisoner/convict from other States to avail of furlough leave. Such requirement as aforesaid would not only result in imposing condition not envisaged by the Act and the statutory Rules but would also end up in being arbitrary and unjust and hit by Articles 14 and 21 of the Constitution of India. For, a prisoner who has no relative or for that matter friends or acquaintances in Maharashtra State, can never be able to offer local surety and resultantly be denied of the legal right to avail of furlough leave. Further, a prisoner from outside State would avail of furlough facility to visit his/her relatives in other States. In other words, relatives from other State will in fact be receiving the prisoner while on furlough leave. Going by the language of Rule 6, it is enough if the concerned relative of the prisoner was to come forward to receive the prisoner while on furlough leave and also ready to enter surety bond in the prescribed form. So long as the said relative is able to offer solvent surety, the requirement of Rule 6 would stand complied.
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20. Considering the above, we have no hesitation in setting aside the condition imposed by the Authority in each of these Petitions to furnish local solvent surety only from State of Maharashtra. Further, the relevant clause in the Government Circular dated 16th December 2008 will have to be read to mean to submit inquiry report as to whether it is necessary to provide a local surety. The requirement of furnishing local solvent surety from Maharashtra cannot be treated as condition precedent for grant of furlough leave to prisoners from other States. On the other hand, if the prisoner/convict is in a position to offer solvent surety, albeit, from outside Maharashtra, there is no reason to discard such surety, unless there is adverse report as in the case in the first Petition before us relating to the area where the prisoner intends to spend his furlough leave. At the same time, the Authority can refuse or not recommend release of the prisoner in question on the ground of public peace and tranquility or such other grounds specified in Rule 4 in Clauses (1) to (10) thereof.
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