I.A. ANSARI, J.

(1.) Heard Mr. SP Roy, learned counsel appearing for the accused-petitioner, and Mrs. Aungla Aier, learned Junior Govt. Advocate, Nagaland.

(2.) This revision is directed against the orders, dated 07.01.2005 and 08.01.2005, passed by learned Additional Deputy Commissioner (Judicial) Dimapur, Nagaland, in GR Case No. 465/2004 (corresponding to [Dimapur East RS. Case No. 161/04) under Sections 420/464/467/468 IPC.

(3.) Before coming to the directions contained in the orders impugned in the present revision, it is necessary to set out, in brief, here in below, the various stages, which have Jed to the passing of the impugned orders aforementioned :

(i) An order was passed, on 25.10.04, by the learned Additional Deputy Commissioner (Judicial) Dimapur, Nagaland, in G.R. 4657 04 aforementioned granting bail in favour of the accused-petitioner subject to the following conditions : (1) To deposit a sum of Rs. 25 lakhs in cash towards recovery of public money misused by him (2) Undertaking to deposit the rest of the public money collected by him by 25.11.04 (3) Accused to attend I/O on summon to help complete the investigation. (4) Furnish a surety as bailor for Rs. 25 lakhs who shall deposit original patta in support of existence of the landed property. (5) Accused shall not leave Dimapur without the permission of this Court during pendency of this case. (6) Any fresh evidence if brought by the I/O the interim bail shall automatically stands cancelled. (7) Execute a bail bond for Rs. 25 lakhs. Bail till 25.11.2004 granted.

(ii) The above order was challenged in Criminal Revision No. 670/04 on the ground that the conditions aforementioned imposed on the accused-petitioner, while granting interim bail by the order, dated 25.10.2004, were harsh and untenable in law.

(iii) Upon hearing the learned counsel for the parties and upon perusal of the materials on record, this Court observed and directed, in GR Case No. 465/2004 aforementioned, as follows:

"The accused-petitioner abovenamed is alleged to have fraudulently withdrawn the money from the Dimapur Post Office by forging the signatures of the depositors. In a situation, such as the present one, all the conditions imposed by the impugned order, dated 25.10.2004, aforementioned cannot be said to be unreasonable and/ or untenable in law. However, as regards the condition Nos. 1 and 2, namely, (1) that the accused-petitioner above-named shall deposit a sum of Rs. 25 lakhs, in cash, towards recovery of public money misused by him and that (2) he shall give an undertaking that he shall deposit the rest of the public money collected by him by 25.11.2004, it is reluctantly conceded even by the learned Govt. Advocate that the conditions No. 1 and 2 could not have been imposed, while granting interim bail, for, imposing of such conditions for granting of bail will be tantamount to holding, without trial, the accused petitioner guilty of the offences allegedly committed by him. Considering, therefore, the matter in its entirety, the condition Nos. 1 and 2 aforementioned contained in the impugned order, dated 25.10.2004, are hereby set aside, but rest of the conditions imposed while granting interim bail are hereby maintained. With the above modification in the impugned order, dated 25.10.2004, aforementioned, this revision shall stand disposed of."

(iv) Unable to offer any surety from the local area and also on failing to find a surety, why could offer the surety amount of as much as Rs. 25 lakhs, a petition was moved, on behalf of the accused-petitioner in the learned Court below, to modify the conditions aforementioned. On this petition, the learned Court below passed the order, dated 7.1.2005, aforementioned. The relevant portion of the order, dated 7.1.2005, is quoted herein below : "The learned counsel for the accused-petitioner submits that (a) the condition No.l and 2 of this Courts order dated 25.10.04 was set aside by the Honble Gauhati High Courts order dated 17.11.04 and reaffirmed the other conditions set therein. (b) that the accused is unable even to fulfill the other conditions of the bail order dated 25.10.04 and the accused remained in the judicial custody till date. As such it is prayed to relax the order dated 25.10.04 of this Court and thereby enabling the accused to furnish a patta for a plot of land lying at Diyapara Pt. I, Dhubri Circle Assam which is valued at Rs. 2,45,388/- with one Assam Type Building standing therein which is valued at Rs. 2,00.000/- (total value Rs. 4,45,388/-). The learned Public Prosecutor for the State submits that the re-affirmed term of the bail order dated 25.10.04 is that the accused has to furnish a surety amounting to Rs. 25,00,000/-. The surety offered to be furnished is amounting to Rs.4,45,388/-. The accused has fraudulently drawn public deposit from the post office and public from the market which amounts to more than Rs. 50,00,000/-. As such it may not be in the interest of justice to release the accused at this stage."

(v) When the accused-petitioner, once again, moved a petition praying for modifying the conditions aforementioned, the learned Court below, after hearing the learned counsel for both the sides, observed and directed, by its order, dated 8.1.2005, aforementioned as follows :

"I do not find any efforts being made by accused petitioner to refund the public money he had collected by unfair means. The fact that the case is serious involving large number of depositors, it is needless to mention that adequate surety from a permanent resident of Dimapur having immovable property and capacity to secure presence of accused before the I/O and later face trial has to be furnished. The offered security which is situated outside the juristction of this Court is not acceptable giving the facts of the case at hand. Accordingly the petition is rejected to the extend that the conditions set up by this Courts order dated 25.10.04 and reaffirmed by order dated 17.11.04 of the Honble Gauhati High Court cannot be reconsidered."

(4.) In the present revision, the grievance of the accused-petitioner is that since the amount of surety as much as Rs. 25 lakhs could not be arranged by the accused-petitioner and he could only offer a surety, which valued at Rs. 4,45,388 lakhs, the learned Court below refused to reduce the amount of surety to be offered by the accused-petitioner for his release on bail and, in consequence thereof, the accused-petitioner could not be released on bail. It is also submitted by the accused-petitioner that since he is not from Nagaland, he is unable to offer any local surety from the State of Nagaland and, hence, in such a situation, the insistence by the learned Court below that the surety to be offered must be a local one is a good as denying the accused- petitioner the liberty of bail. The amount of bail, so insisted upon, is according to the accused- petitioner, impossible to be arranged by the accused-petitioner and, hence, the conditions, so imposed, need to be modified.

(5.) While considering the present revision, it needs to be noted that a criminal proceeding is not a substitute for a civil proceeding, for, these two proceedings are totally different from, and independent of, each other. Hence, if a person is alleged to have dishonestly misappropriated an amount of Rs. 1 lakh and has thereby committed an offence punishable under Section 406 IPC, it will be impermissible under the law to insist that the accused shall execute bail bond of Rs. 1 lakh and offer surety of such an amount. The learned Court below, as the orders passed hereinabove indicate, has made an attempt to-realize the money, allegedly misappropriated by the accused-petitioner, by way of insisting on an amount of Rs. 25 lakhs as the value of bail bond and of the surety.

(6.) While dealing with this revision, it is also of immense importance to note that Section 440 Cr. P.C. provides that the amount of every bail bond to be executed shall be fixed with due regard to the circumstances of the case and shall not be excessive. Thus, it is clear that the legislative intent is that the amount of bond should be fixed with due regard to means of the accused, the nature and gravity of the offence, but the amount, asked for, shall not be excessive and/or onerous.

(7.) In Keshab Narayan Banerjee V. The State of Bihar, (AIR 1985 SC1666), while considering correctness of the order whereby the Court had directed that the accused shall furnish security of rupees one lakh in cash or in fixed deposit in any Nationalized Bank, in Bihar, with two sureties residing in the State of Bihar, each for a like amount, it was held by the Apex Court thus :....in the circumstances of this case, it virtually amounts to denial of bail itself." The Apex Court, therefore, reduced the amount of bail to Rs. 25,000/- (Rupees twenty five thousand) with two sureties each for the like amount.

(8.) In short, the conditions imposed for granting of bail cannot be so onerous that it virtually amounts to denial of the bail itself. This is the principle underlying the decision of Keshab Narayan Banerjee (Supra)

(9.) It is also important to note that in Moti Ram and others Vs. State of Madhya Pradesh (AIR 1978 SC 1594 [LQ/SC/1978/214] ) wherein the trial Court had insisted on producing a surety from a particular, local area, the Apex Court observed and held as follows: "To add insult to injury, the magistrate has demanded sureties from his own district! (we assume the allegation in the petition). What is a Malayalees, Kannadiga, Tamil or Telegu 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. Equally 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." (See also AIR 2000 SC 714 [LQ/SC/2000/126] (Sandeep Jain, appellant V. National Capital Territory of Delhi rep. By Secretary, Home Department, respondent).

(10.) Thus, in an appropriate case, as the decision in Moti Ram and others V. State of Madhya Pradesh (supra) lays down, Court may not even insist on local surety.

(11.) In the case at hand, the offences allegedly committed by the accused-petitioner are under Sections 420/464/467/468 IPC. In the present case, the insistence by the learned Court below that the accused shall offer the surety of an amount of Rs. 25 lakhs is so onerous that it virtually amounts to refusal to allow the accused to go on bail. Similarity, the insistence of the learned Court below that the surety has to be from the local areas is as good as denying the accused-petitioner the liberty of bail.

(12.) Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the accused-petitioner be released on his furnishing bail bond of Rs. 50,000/- (Rupees fifty thousand only) with a surety of the like amount to the satisfaction of the learned Court below. It is, however, made clear that the surety need not be from the local area.

(13.) With the above modifications in the impugned orders, dated 07.01.2005 and 08.01.2005, aforementioned and the directions contained here in above, this revision shall stand disposed of.