KHADIM ALI Vs. EMPEROR

JUDGEMENT

(1.) THIS is an unusual case. The applicant who applies for bail is charged under Section 468 of the Indian Penal Code, which of course is a very serious matter, namely, committing forgery for the purpose, of cheating. According to an imperfect affidavit which is before me, and which has been filed not strictly in accordance with the Rules of the Court but which has been made by the brother of the applicant and substantially sets out the facts so far as is necessary for this application, the applicant is accused of having put forward a nomination paper for the election of himself as a Municipal Commissioner, containing the alleged signatures of four persons who did not in fact sign the paper or authorise their signatures, and whose signatures must either have been known to the applicant to be forged or have been written by himself. It is alleged in the affidavit that the nomination paper was filed on the 15 April 1921 and that on the 18 April the accused withdrew his candidature and was arrested on the 21 of the same month. Apparently there is a division of opinion in the Khilafat Committee or in the Muhammadan community in which he has taken a prominent part, having been President of the Khilafat Committee from which he has now retired. No doubt it is a very serious thing for any one, particularly a prominent member of the community, to attach signatures to a public document without authority, pretending that they are real signatures, when he knows that they are not. It is an immoral and dishonest act and must certainly be a breach of the Election Law. It is calculated to cause inconvenience and loss to the authorities conducting the election, and annoyance to persons who vote for a candidate who has no proper qualifications, but I feel great difficulty in seeing how anybody can bring it under Section 468 of the Indian Penal Code or how anybody in these circumstances can go into the box and say he has been cheated by the candidate, and unless somebody can swear that he has been cheated by a forged signature, there is no cheating. Whether there are any other Secs.in the Code or Secs.in the Election Law which are applicable it is not my business to decide, but it is clearly relevant on an application for bail that the Court should consider what are the penal consequences of the act when proved, and what is the nature of the offence charged. It is said that Section 466 of the Indian Penal Code is a non-bailable offence and it is clearly relevant on an application for bail to consider whether the offence charged is or is not a bailable offence. The view which I always take of applications for bail is substantially this. If the offense is one, assuming it not yet to have been tried, in which the accused is charged with some grave act of violence like murder or dacoity or organised riot, or if it a serious charge of fraud in some commercial transaction, in which he has made or is alleged to have made large gains, so that he is not an unlikely person to endeavour to escape punishment by absconding, I do not grant bail, A fortiori where the man has already been convicted and has only appealed. But where the charge is one of an argumentative nature not in the category of ordinary crimes against society, I think the man has the right to retain his freedom pending his trial, subject to a reasonable guarantee which will involve loss upon himself and his sureties if he does not present himself, the question being whether one has reasonable ground for supposing that the person is such or the offence is such that he is likely to prefer the expense of exile involved in absconding rather than face his trial and accept any punishment which the law inflicts upon him. It is pressed upon me very strongly by the Assistant Government Advocate that three people, namely, the trying Magistrate and two successive Sessions Judges, have already refused him bail. Of course if that were a ground in itself, there would be no reason for applying to the High Court in any case. It would be a sufficient answer in any case to say that bail had already been refused. The applicant is a prominent member of the Muslim community in Jhansi. The offence was local offence and will be tried locally. He is said to be a shop-keeper and it is extremely unlikely, in my opinion, that he will abscond and run the risk of being sold up rather than suffer the penalty in case of a conviction.

(2.) I admit him to bail in his own recognizance of Rs. 500 with two sureties of Rs. 250 each, the condition of such recognizance being that he appear at the Court on the day fixed for trial, and thereafter from day to day during the trial until judgment by the Sessions Court.