ANAND KRISHNAYA KONDIYA Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) This petition contains a grievance similar to the one contained in Criminal Applications No. 495 and 534 of 1987 which were disposed of by my judgment dated the 13th July, 1987. The grievance being that the accused who has once been granted bail after his arrest during investigation should not be directed to offer bail at over again after process is issued on a complaint being filed against him. According to the petitioner the bail already granted to him should be held to enure to his benefit till the final disposal of the case and the practice of calling upon the accused to furnish bail at different stages of the prosecution such as during investigation, after issue of process, after the order of committal to the Court of Sessions was not warranted by any law and practice in that behalf and the said practice causes harassment to the accused for no advantage to the prosecution. I have in the aforesaid judgment held that an accused once released on bail need not be required to offer bail at the aforesaid subsequent stages of prosecution as the bail offered by him would continue to enure to his benefit till the final conclusion of the trial. I have further held that the prevailing practice calling upon the accused to offer bail and furnish security at different stages of the prosecution causes considerable inconvenience and harassment to the accused without any corresponding advantage so far as the administration of criminal justice is concerned and that practice, which has no justification, should be discontinued. I have also held that the bail bonds executed by the accused and the sureties furnished by him continue to subsist till the final conclusion of the trial.

(2.) Shri Gupte, the learned Counsel appearing on behalf of the respondent No. 1 the Assistant Collector of Customs, has sought to urge some additional grounds in an attempt to persuade me to take a view contrary to the view taken by me in the aforesaid judgment. He submitted that as in the present case after a complaint is filed by the respondent No. 1 under section 200 of the Code of Criminal Procedure, the Magistrate has an unfettered discretion to issue process in a summons case by issuing summons and in a warrant case by issuing a warrant either bailable or non-bailable. In his submission it was open to the Magistrate, after considering all the facts and circumstances of the case, to determine the amount of bail which the accused was required to furnish. He reiterated that on the accused being produced before the Magistrate in execution of a warrant as contemplated under section 204(1)(b), the bail bond as also the surety furnished earlier stood cancelled and consequently the accused was bound to furnish fresh bond and surety.

(3.) Shri Gupte, on placing reliance on section 71 of the Code of Criminal Procedure, submitted that any Court issuing a warrant of arrest may in its discretion determine the amount of the bond or the sureties that an accused would be required to furnish for the purpose of securing the attendance of the accused. He laid emphasis on sub-section (2) of section 71 which speaks of the endorsement to be made on the warrant in regard to the number of sureties and the amount of the sureties the accused are to furnish. According to Shri Gupte the discretion of the Magistrate both under section 204 as also section 71 of the Code is unfettered and there was no justification either to limit or cirumscribe the said discretion.