Babita Devi @ Kalu Devi and Anr v. The State of Assam

Order

18.10.2023

Heard Mr. Deb Sarmah, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor, Assam, appearing for the State Respondent. This is an application under Section 482 of the Code of Criminal Procedure seeking setting aside of the order dated 16.09.2023 passed in Special (NDPS) Session Case No. 71/2023 by the learned District and Session Judge, Karimganj granting bail to the petitioner with a direction to allowed to go on bail of Rs. 30,000/- each with two local sureties of the like amount each, out of whom one shall be a Government servant. I have perused the petition and the annexures furnished therewith including the impugned order. On perusal of the impugned order, it is found imperative to quote para-5 of the order for a just decision of the instant petition, which reads as under: " Hence, considering the period of custodial detention, already undergone by the accused persons namely Babita Devi @ Kalu Devi and Shoni Devi, they are allowed to go on bail of Rs. 30,000/- each with two local sureties of the like amount each, out of whom one shall be a Government servant, to the satisfaction of this Court. the accused persons are directed not to cause any threat or influence any person acquainted with the facts of the case and further directed not to get indulged in any offence and shall face the trial without any default. In Page No.# 3/5 default of furnishing bail bond and surety, the accused persons are remanded back to jail till

30.09.2023-". It appears from the above order passed by the learned Sessions Judge, aforesaid that while the accused petitioner was granted bail, the condition was to the effect that he is to furnish two local sureties of Rs.30,000/- each and out of the two local sureties, one must be a government servant. Learned counsel for the petitioner has submitted that the petitioner belongs to very poor strata of the society and she hails from the State of Bihar. The bail bond is to be furnished by the accused petitioner in the Court of District and Sessions Judge, Karimganj. On examination of the entire materials on record, including the impugned order, it does not appear to this Court that specific reason has been assigned in the order to justify demand of a government servant as surety. Normally, when bail is granted, surety is to be furnished. Unless unusual course is adopted, reason is not required to be given for asking any surety. However, since an unusual course of demanding the surety of a government servant is directed by the learned Court below, there must be some reason for such a decision. However, on examination of the order, it does not appear to this Court as to under what circumstance a government servant was directed to be one of the sureties. The petitioner is said to be hail from very poor strata of the society. I have taken into account the decision of the Hon'ble Supreme Court in the case of Moti Ram and others Vs. State of M.P. reported in AIR 1978 SC 1594 as placed before this Court by Mr. D. Sarmah, learned counsel for the petitioner and has taken note of paragraphs-31 and 32 thereof, which read as follows :- Page No.# 4/5

¶31It shocks one's conscience to ask a mason like the petitioner to furnish sureties for Rs 10,000. The Magistrate must be given the benefit of doubt for not fully appreciating that our Constitution, enacted by 'We, the People of India', is meant for the butcher, the baker and the candlestick maker — shall we add, the bonded labour and pavement dweller.

¶32To 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 nonregional 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. On consideration of the facts of the given case, as indicated above, and in the light of the decision of the Hon'ble Supreme Court, referred to above, this Court is of the view that surety of a government servant, as sought for, is too harsh for the petitioner that it would amount to refusal of bail as he wouldn't be out on bail if required to produce a Government Servant as surety. That being so, while retaining the order of furnishing two sureties, this Court considers the condition that one of the sureties to be a government servant Page No.# 5/5 appears to be unjust and unfair and, therefore, the condition of one of the surety "to be a government servant" is set aside. Accordingly, the order impugned is partially set aside. This order is passed to secure the ends of justice as provided in Section 482 of the Code of Criminal Procedure. This criminal petition, accordingly, stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010236532023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1141/2023 BABITA DEVI @ KALU DEVI AND ANR W/O LALU SHARMA R/O KRISHANGANJ P.S. RUPAULI, DIST. PURNIA, BIHAR 2: SMT. SHONI DEVI W/O BABLU SHARMA R/O KRISHANGANJ P.S. RUPALI DIST. PUNIA BIHAR (THEY ARE REP. BY HEREIN BY THEIR RELATIVE SRI SUNIL BAYDHA AGED ABOUT 39 YEARS SON OF LATE TUPHANI BYADHA R/O BASGARA /KORHA BASGARA P.S. KORHA KATIHAR BIHAR PIN-854108 VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR DEBA SARMAH Advocate for the Respondent : PP, ASSAM Page No.# 2/5 BEFORE THE HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY