ANWAR HUSSAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) Labelling conditions imposed by the learned Judicial Magistrate, first class, Jaleswar while disposing of petitioner's application for bail to be unreasonable, and virtually denial of right to get bail this application has been filed.

(2.) On the accusations of having committed offence punishable under Section 47 of the Bihar and Orissa Excise Act, 1915 (in short, the 'Act') petitioner was arrested. He moved for bail before learned Judicial Magistrate, first class, Jaleswar. Learned Magistrate observed that alleged offence was bailable in nature. Petitioner was directed to be released on bail of Rs. 2,000.00 with one surety for the like amount and to deposit cash security of Rs. 2,000.00 since, according to learned Magistrate, there was likelihood of his absconding. Petitioner undisputedly has deposited the amount but has prayed for variation of the conditions. It is submitted by the learned counsel for petitioner that the offence being bailable, and there being no material for the presumptive conclusion of the learned Judicial Magistrate that the petitioner was likely to abscond, direction for furnishing cash security of Rs. 2000.00 is unreasonable. The learned counsel for state on the other hand submitted that in a given case cash security can be directed to be furnished. It would all depand on the nature of offence, and an offence under the Act being one which relates to illicit distilled liquor is of a serious nature. He fairly accepted that there was no material to support conclusion of learned Mag istrate that petitioner is likely to abscond. It is, however, submitted that since the offence was of a very serious nature, there was always possibility of the accused fleeing from justice.

(3.) In the absence of any specific provision relating to furnishing of cash security and/or conditions which may be attached by a Magistrate while granting bail, it is within the judicial discre tion of the Magistrate concerned to impose such conditions or require furnishing of such security as the circumstances may require. Chapter XXXIII of the Code of Criminal Procedure, 1973 (in short, 'Cri PC') deals with the provisions as to bails and bonds. There is no specific definition of bail as was observed by me in Surjan Kumar Naik and two others v. Republic of India (Criminal Misc. Case No. 425 of 1994 disposed of on 28-2-1994).