Telangana High Court
Yan Hao vs The State Of Telangana on 23 March, 2021
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.1967 of 2021
ORDER:
This Criminal Petition, under Section 482 of the code of Criminal Procedure,1973, is filed by the petitioner/accused No.1 seeking to quash the order, dated 08.02.2021 in Crl.M.P.No.23 of 2021 in Crime No.489 of 2020 passed by the VII Additional Metropolitan Magistrate-cum-VII Additional Junior Civil Judge, Cyberabad at L.B.Nagar, and for a consequential direction permitting the petitioner to deposit the cash, instead of furnishing sureties in Crl.M.P.No.90 of 2020 in Crime No.489 of 2020, passed by the Court below.
2. The petitioner herein is accused No.1 in Crime No.489 of 2020. The offences alleged against him are under Section 420 I.P.C, Section 3 of the Telangana Gaming Act and Sections 66-C and 66-D of the Information Technology Act, 2000.
3. A perusal of the record would reveal that, nine (9) crimes were registered against the petitioner herein in all and also an ECIR by the Enforcement Directorate. The police have arrested the petitioner herein/accused No.1 on 10.08.2020 in some other crime. According to the learned counsel, the petitioner herein was enlarged on bail in almost all the cases, except the present case and in Crime No.383 of 2020. Since the petitioner herein is entitled for statutory bail under Section 167 (2) Cr.P.C, he has filed an application under Section 167 (2) Cr.P.C., vide Crl.M.P.No.90 of 2020 in Crime No.489 of 2020 and the learned VII Additional Metropolitan Magistrate-cum-VII Additional Junior Civil Judge, Cyberabad at L.B.Nagar, vide order, dated 05.01.2021, granted statutory bail to the petitioner on condition that: 1) the petitioner shall execute personal bond for a sum of Rs.10,000/- with two sureties KL,J crlp_1967_2021 2 for a like sum each to the satisfaction of the Court below; and 2) the petitioner shall deposit his original passport before the Court below.
4. Aggrieved by the said order, the petitioner herein filed an application under Section 445 Cr.P.C, vide Crl.M.P.No.23 of 2021 in Crime No.489 of 2020 before the very same Court seeking to substitute one of the bail conditions i.e., to deposit the cash, instead of furnishing sureties. The learned Magistrate vide order, dated 08.02.2021, had dismissed the said application on the ground that the petitioner herein is a Foreigner, native of China, he has not deposited his original passport before the Court and though he has mentioned that the same was seized in Crime No.1432 of 2020 pending on the file of CCS, Hyderabad, but he has not filed any proof to substantiate his version with regard to the same. Since the petitioner is from China, if the Court permits him to deposit the cash, instead of furnishing sureties, under Section 445 Cr.P.C., it is difficult to ensure his attendance before the Court in further proceedings of the case and that merely taking cash surety would not be reasonable. Feeling aggrieved by the same, the petitioner herein filed the present application under Section 482 Cr.P.C.
5. Sri E.Uma Maheshwar Rao, learned counsel representing Ms.Divya Adepu, learned counsel for the petitioner, would submit that the petitioner herein is a Foreigner, belonging to China and, therefore, it is difficult for him to furnish two sureties in compliance of order, dated 05.01.2021, passed by the learned Magistrate in Crl.M.P.No.90 of 2020 in Crime No.4893 of 2020. He would further submit that the petitioner herein has filed a Memo, dated 06.01.2021 stating that his passport was seized in Crime No.1432 of 2020 by the Cyber Crime police and in proof of the same, he has also filed seizure report in the said Crime No.1432 of 2020. Learned counsel for the petitioner would further submit that the learned Chief Metropolitan Magistrate, Hyderabad, vide order, dated 14.12.2020 in Crl.M.P.No.702 of 2020 in Crl.M.P.No.416 of 2020 in KL,J crlp_1967_2021 3 Crime No.1432 of 2020 permitted the petitioner to furnish cash sureties of Rs.1,00,000/- by way of deposit of F.D.Rs., in the name of Chief Metropolitan Magistrate, Hyderabad of SBI, City Criminal Court, Nampally branch, Hyderabad. By referring to another order, dated 14.12.2020, in Crl.M.P.No.701 of 2020 in Crime No.1580 of 2020 pending on the file of CCS, DD, Hyderabad, passed by the learned Chief Metropolitan Magistrate, Nampally, Hyderabad, learned counsel for the petitioner would submit that in similar circumstances, the learned Magistrate has enlarged the petitioner on statutory bail on execution of personal bond for a sum of Rs.1,00,000/- with two sureties/F.D.Rs for a like sum each in the name of Chief Metropolitan Magistrate, Hyderabad of SBI, City Criminal Court, Nampally Branch, Hyderabad, and he is further directed to surrender his passport in the Court.
6. Learned counsel for the petitioner also referred to another order, dated 23.12.2020, passed in an application under Section 167 (2) read with 445 Cr.P.C., vide Crl.M.P.No.508 of 2020 in Crime No.205 of 2020 passed by the VI Additional Chief Metropolitan Magistrate, Hyderabad, allowing the said application, permitting the petitioner herein to deposit an amount of Rs.10,000/- two F.D.Rs., in the name of VI Additional Chief Metropolitan Magistrate, Hyderabad SBI, City Criminal Courts, Nampally Branch, Hyderabad.
7. Learned counsel for the petitioner has also filed a copy of common order, dated 14.10.2020, in Crl.M.P.Nos.416 and 417 of 2020 in Crime No.1432 of 2020, wherein the learned Chief Metropolitan Magistrate, Nampally, Hyderabad, has granted statutory bail to the petitioner herein and accused No.3 in Crime No.1432 of 2020 on the condition of execution of a personal bond for a sum of Rs.1,00,000/- each with two local sureties for a like sum each and also directed the petitioner herein and accused No.3 to appear before the said Court on every date of hearing etc and pursuant to the said order of furnishing sureties, the KL,J crlp_1967_2021 4 learned Magistrate has also issued release order, dated 20.01.2021 in Crime No.1432 of 2020.
8. By referring to the above said orders, learned counsel for the petitioner would submit that since the petitioner herein is a Foreigner, native of China, he is not in a position to furnish two sureties in compliance of the order, dated 05.01.2021, and, therefore, he has filed application under Section 445 Cr.P.C., seeking permission of the learned Magistrate to substitute the bail conditions permitting the petitioner to deposit cash, instead of furnishing sureties. According to the learned counsel for the petitioner, without appreciating the contentions raised by the petitioner herein and orders passed by several Courts in similar circumstances with regard to the very same petitioner permitting him to furnish cash sureties, the Court below dismissed the said application vide order, dated 08.02.2021.
9. Learned counsel for the petitioner, by referring to the principle laid down by the Hon'ble Apex Court reported in Moti Ram and others v. State of Madhya Pradesh1; Agali E.Samko v. State (N.C.T. of Delhi)2; Abhishek Kumar Singh v. State of Himachal Pradesh3; David Morrison v. State of Uttarakhand4 and Mantoo Majumdar and another v. State of Bihar5, would submit that the Courts can enlarge the accused on his own bond without even furnishing the sureties and while submitting so, learned counsel for the petitioner seeks to quash the impugned, order, dated 08.02.2021, passed by the Court below.
10. The learned Public Prosecutor, on instructions, would submit that the petitioner is involved in nine (9) cases and the total fraud played by him is about 1500 crores. The petitioner herein has cheated many 1 (1978) 4 Supreme court Cases 47 2 2006 SCC online Del 1652 3 Cr.MP (M) No.1017 of 2020, dated 30.07.2020 4 Criminal Misc. Application No.902 of 2020, dated 13.01.2021 5 (1980) 2 Supreme Court Cases 406 KL,J crlp_1967_2021 5 people and the police are recording the statements of victims. He is a Foreigner, native of China, and ensuring his presence by the Investigating Agency in concluding the investigation would be difficult, in the event if the petitioner leaves India. He has not filed any poof to show that he has deposited his passport in some other crime before the Court concerned. Thus, he prayed to impose stringent conditions on the petitioner, including his appearance every week, to ensure his presence by the Investigating Officer in concluding investigation. With the said submissions, learned Public Prosecutor sought to dismiss the present application.
11. The above stated facts would reveal that the petitioner herein is an accused in Crime No.489 of 2020 and the offences alleged against him are punishable under Section 420 I.P.C, Section 3 of the Telangana Gaming Act and Sections 66-C and 66-D of the Information Technology Act, 2000. It is also not in dispute that the Court below has granted statutory bail to him vide its order, dated 05.01.2021 in Crl.M.P.No.90 of 2020 in Crime No.489 of 2020 on condition of execution of a personal bond for a sum of Rs.10,000/- with two sureties for a like sum each to the satisfaction of the said Court and also to deposit his original passport. The petitioner herein has filed an application under Section 445 Cr.P.C seeking to substitute one of the bail conditions i.e., to deposit cash, instead of furnishing solvency certificates on the ground that he is a Foreigner, belonging to China and hence, he is not in a position to furnish the said sureties in compliance of order, dated 05.01.2021. However, the Court below has dismissed the said application stating that though the petitioner contends that he is a Foreigner, native of China, and he is not in a position to deposit his original passport as the same was seized in Crime No.1432 of 2020, he has not filed any proof to substantiate his contention.
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12. A perusal of the material would reveal that the petitioner herein has filed Memo, dated 06.01.2021, in Crl.M.P.No.24 of 2021 in Crl.M.P.No.340 of 2020 in Crime No.383 of 2020 stating that he has moved similar application seeking relaxation of conditions in Crime No.1432 of 2020 i.e., to substitute bail conditions and filed a seizure memo in Crime No.1432 of 2020, where the passport of the petitioner/accused No.1 has been seized. A perusal of the said seizure report in Crime No.1432 of 2020 filed as a material paper before this Court would reveal that the original passport of the petitioner herein was seized. Apart from original passport, the police have also seized his Laptop, Mobile phone etc, the particulars of which are specifically mentioned in the said seizure report.
13. It is also relevant to note here that the learned Chief Metropolitan Magistrate, Hyderabad, in other Crimes i.e., in Crime Nos.1432 and 1580 of 2020 has granted bail to the petitioner herein on execution of a personal bond and also on furnishing two cash sureties/F.D.Rs in the name of the learned Magistrate. Similar order was passed in Crime Nos.205 and 239 of 2020 also and, in all the said crimes, the learned Magistrates, after appreciating that the petitioner, being a Foreigner belonging to China, will not be in a position to furnish the solvency certificates, has permitted the petitioner herein to furnish the cash sureties. Whereas, in the present case, the learned Magistrate has dismissed the application filed by the petitioner herein under Section 445 Cr.P.C, on the ground that the petitioner has not produced any proof to substantiate his contention that his original passport was seized in Crime No.1432 of 2020; whereas, the fact remains is that the original passport of the petitioner herein was seized in Crime No.1432 of 2020 and in proof of the same, the petitioner herein has filed seizure report in Crime No.1432 of 2020. Thus, the finding of the learned Magistrate that KL,J crlp_1967_2021 7 the petitioner has not filed any document to show that his passport was seized in Crime No.1432 of 2020 is contrary to the material on record.
14. In Moti Ram v. State of Madhya Pradesh6, the Hon'ble Supreme Court had an occasion to deal with the scope of bail which includes with or without sureties, amount of bond Court should insist upon and propriety of insisting that surety be from the same district etc. The Apex Court has categorically held that the principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest. It further held that Article - 14 of the Constitution of India 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. India is a Bharat, any person, from anywhere in India can stand as surety. In the said case, the Magistrate has demanded sureties from his own District. On consideration of the facts of the said case, the Apex Court has also discussed about the law that prescribes sureties from outside or non- regional linguistic, some times legalistic, applications etc., and held at paragraph No.33 as follows:
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. (1978) 4 SCC 47 KL,J crlp_1967_2021 8 "To 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, Tamilian or Andhra to do if arrested for alleged misappropriation or them or criminal trespass in Bastar , Port Blair ,Port Blair . Pahalgaam of 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 buy such provincial allergies. What law prescribes sureties from outside or non- regional linguistic, some times legalistic. 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, some times legalistic. Art 14 protects all Indians qua Indians, within the territory of India. Art 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 theat even a vakalat or affirmation made ill 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."
15. Thus, the Apex Court held that the Court, which is dealing with bail application, shall consider the said aspects, and finally held as follows:
"An After word We leave it to Parliament to consider whether in our socialist republic, with social justice as its hallmark, monetary superstition, not other relevant considerations like family ties, roots in the community, membership of stable organizations, should prevail for bail bonds to ensure that the 'bailee' does not flee justice. The best guarantee of presence in court is the KL,J crlp_1967_2021 9 reach of the law, not the money tag. A parting thought. If the indigents are not to be betrayed by the law including bail law re-writing of many processual laws is in urgent desideratum; and the judiciary will do well to remember that the geo-legal frontiers of the Central Codes cannot be disfigured by cartographic dissection in the name of language of province."
16. In Kamla Bai Gopalrao Jamdar v. Chief Judicial Magistrate, Gwalior7, the Madhya Pradesh High Court (Gwalior Bench) had an occasion to discuss about the object of furnishing surety, and it held that discretionary power of a Judge provides claws to laws. Not all situations can be contemplated and foreseen even by the best of human talent and ingenuity. Of necessity some space is invariably left uncovered by statutes where judicial discretion may play, lest the law should be reduced to the status of an inflexible iron rod which would break but not bend. A Judge has to devise his own procedure, sometimes mechanism, sometimes laying down his own guidelines to act, and sometimes to take decision where to nail the board, of course, within its four corners and as demanded by exigencies of situation. The discretion conferred by Section 441 of the Code of Criminal Procedure, 1973, on a Magistrate (or a court, for the matter of that) and nature of power conferred thereby is a quasi-judicial discretionary power on a judicial authority. It is not a judicial act in the sense in which the term is understood. Nor it is unbridled executive power.
17. In Sagayam @ Devasagayam v. State rep. by the Inspector of Police, Chetpet Police Station, Chennai8, the Madras High Court has extensively discussed about the scope of the bail and 7 1989 SCC Online MP 253 = 1990 Crl.L.J. 2550 8 . 2017 SCC OnLine Mad 1653 KL,J crlp_1967_2021 10 surety, and it held that 'right to life' and 'right to live' with human dignity is very important for human existence. Less of that human beings becomes mere chattles, motionless machines and feelingless robots. Dr. B. R. Ambedkar, the draftsman of the Indian Constitution, with so much foresightedness, knowing that in this country, people with power and money will simply rob the personal liberty of the people, introduced Article - 21 in our Constitution, which is Cinderella of the lovers of Civil liberties. It is a magnum opus and genius of our Founding Fathers. It is more than British Magna Kartha and Bill of Rights. Article - 21 is the soul of the Indian Constitution. It exhibits the zeal of our Constitutional makers. The bail provisions and the provisions relating to bail bonds and surety bonds cannot run contrary to Article - 21 of the Constitution of India. Thus, any bottle necks or curbs to secure the liberty of the accused in pursuance of a bail order, requires deep study.
18. By referring to various provisions of the Code including Sections 441, 445 and 446, the Madras High Court held that surety should be a fit person and the sureties are expected to file surety affidavits. If the Court considers it necessary, it can conduct enquiry by itself or it can direct a Subordinate Court to conduct enquiry as to the fitness of the person to stand as surety. It is called surety verification. This enquiry is to ascertain the fitness of a person, who files surety affidavit, who came to execute the surety bond. Only if the Court needs or consider it necessary this enquiry can be conducted. Under the garb of conducting surety verification, there cannot be a cruelling exercise. There cannot be indignation to a surety, which will make him to run KL,J crlp_1967_2021 11 away from the Court without offering surety. The only thing the court is expected is to ascertain, whether the surety is willing to stand as a surety for the accused. A person coming as a surety shall not be made to feel, why he should stand as a surety for the accused. The word 'surety', although comes in several places in Chapter 33 of the Code has not been explained anywhere in the Code.
19. In general English, 'surety' means, a person giving assurance for another person. In Civil law, a surety is also known as 'guarantor'. Under Civil law, 'the liability of the surety is co- extensive with that of the principal debtor'. If the principal debtor fails to pay the assured amount, the surety will have to pay the amount. Under Criminal law, the person, who offers surety cannot be sent to jail if the accused fails to attend the Court. Actually, the surety bond is given to the Court. It is not a bond between the accused and the surety. It is a bond between the surety and the Court. The surety undertakes, assures, guarantees the appearance of the accused in the Court. If the accused fails to appear, surety cannot be punished. The surety amount given by him could be forfeited to the State after a due enquiry in accordance with the procedure laid down under Section 446 of the Code.
20. In State of Maharashtra v. Dadamiya Babumiya Sheikh9, the Apex Court held that a surety bond is a contract and it is a question as to how far its terms can be considered to have been varied by any unilateral act. Each bond, it may be pointed out, has 9 . AIR 1971 SC 1722 KL,J crlp_1967_2021 12 to be construed on its own terms. But in construing the terms of a surety bond for the production of an accused person, the purpose and object of executing it must be kept in view. Such a bond is executed for the purpose of ensuring the presence of the accused concerned in Court, in which he is standing his trial for a criminal offence at the hearing of the case. But for the execution of such a bond, the accused would have to remain in custody so that the trial may proceed smoothly. It further held that surety bonds in criminal cases must be held to be designed to an extent to serve a public purpose. In some cases it is of course said that surety bonds call for a strict construction. But the construction must not be so unduly strained as to result in defeating its essential purpose. Each bond has of course to be construed on its own terms, subject to what has just been stated.
21. Thus, the Courts have to examine the facts of each case, while granting bail and while directing the accused to furnish sureties, and examine other conditions of bail. There is no straight jacket formula in imposing conditions by the learned Magistrates in granting bail.
22. In view of the above stated authoritative pronouncements of law by the Hon'ble Apex Court and various other Courts, coming to the facts on hand, admittedly, the petitioner herein/accused No.1 is a Foreigner, native of China, in other matters, the learned Magistrates have granted bail to him and permitted him to furnish cash sureties and on execution of personal bonds. Admittedly, his original passport was seized in Crime No.1432 of 2020. Therefore, the finding of the Court below in the impugned order, dated KL,J crlp_1967_2021 13 08.02.2021, that the petitioner herein has not deposited his original passport and he has not filed any proof to substantiate his contention that his passport was seized in Crime No.1432 of 2020 is factually incorrect. At the cost of repetition, it is relevant to note that the original passport of the petitioner was seized by the police in Crime No.1432 of 2020, which is evident from the seizure report in Crime No.1432 of 2020. Considering the said facts, this Court is inclined to quash the impugned order, dated 08.02.2021 in Crl.M.P.No.23 of 2021 in Crime No.489 of 2020 passed by the VII Additional Metropolitan Magistrate-cum-VII Additional Junior Civil Judge, Cyberabad at L.B.Nagar. Accordingly, the order, dated 08.02.2021 in Crl.M.P.No.23 of 2021 in Crime No.489 of 2020 is quashed. The Crl.M.P. No.23 of 2021 is allowed. The petitioner herein/accused No.1 in Crime No.489 of 2020 is permitted to furnish two cash sureties of Rs.10,000/- each and also shall execute a personal bond for the said amount of Rs.10,000/- to the satisfaction of the Court below. He shall cooperate with the Investigating Officer in concluding investigation in Crime No.489 of 2020.
23. With the above direction, the Criminal Petition is allowed. Miscellaneous petitions, if any, pending shall stand closed.
__________________ K. LAKSHMAN, J 23rd March, 2021 YVL KL,J crlp_1967_2021 14 THE HONOURABLE SRI JUSTICE K. LAKSHMAN CRIMINAL PETITION No.1967 of 2021 Date: .03.2021 YVL