Andhra HC (Pre-Telangana)
G. Venkat Ram Reddy vs The State on 9 January, 1990
Equivalent citations: 1990CRILJ2741
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
ORDER
1. This Criminal Revision is preferred by the accused in S.C. No. 126 of 1985 on the file of the II Additional Metropolitan Sessions Judge. Hyderabad against order dated 22-12-1989 dismissing Crl.M.P. No. 819 of 1989.
2. On 5-12-1989 in Crl. M.P. No. 3803/89 this Court ordered that the Non-Bailable Warrant of arrest of the petitioner issued by the Court of the II Additional Metropolitan Sessions Judge, Hyderabad be recalled on condition of the petitioner executing a fresh bond for Rs. 5,000/- with two sureties, each in like sum, to the satisfaction of the II Additional Metropolitan Sessions Judge, Hyderabad and on his giving undertaking that he would co-operate with early disposal of the Sessions case which is of the year 1985.
3. Pursuant to the above order, it is stated, the petitioner executed a bond and produced two sureties viz., (1) Sri A. K. D. K. V. Prasad, working in H.M.T. drawing a monthly salary of Rs. 2,592-27 Ps. and (2) Sri S. Narasimha who is working as an employee in Hyderabad Asbestos Industries Limited in Sanaghnagar Industrial area from 1-7-1975 who is being paid wages of Rs. 69-76 Ps. per day (the total monthly emoluments being Rs. 2,000/- and odd). The sureties were not accepted and the petitioner was directed to produce sureties having immovable property security worth Rs. 5,000/- each. The petitioner then filed Crl.M.P. No. 819/89 to hold enquiry under Section 441(4), Cr.P.C. out of which this revision arises.
4. The learned II Additional Metropolitan Sessions Judge by his order dated 22-12-1989 held that the earlier order directing the petitioner to produce sureties having immovable property security was passed after enquiry so no enquiry contemplated under Section 441(4) of the Criminal Procedure Code was necessary and rejected the application of the petitioner. It is the correctness of that order that is assailed in this Criminal Revision Case.
5. Sri Bonala Krishna Rao, the learned counsel for the petitioner submits that no enquiry was conducted under Section 441(4) Crl. P.C. so the order is illegal. The learned Public Prosecutor fairly concedes that before rejecting sureties enquiry under S. 441(4), Cr.P.C. is necessary and that no such enquiry was conducted in this case.
6. We may read here sub-section (4) of Section 441 of the Code of Criminal Procedure, which is in the following terms :
"For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers, necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness."
From a perusal of the provision extracted above, it is clear that for the purpose of determining the fitness or sufficiency of the sureties, the Court may accept the contents of the affidavits filed by the sureties. If, however, the Court is not inclined to accept affidavits in regard to sufficiency or fitness of the sureties, it is incumbent on the Court to hold enquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court as to sufficiency or fitness of sureties. Perusal of affidavit does not amount to conducting enquiry. While it is true that the Court has to be satisfied regarding the sufficiency, solvency or fitness of the sureties in case of monetary bail, it would be of great advantage to bear in mind the observations of Krishna Iyer, J. in Moti Ram v. State of M.P. :
"The best guarantee of presence in Court is the reach of the law, not the money tag."
Recent studies on the monetary bail have shown that risk of monetary loss in an insubstantial deterrent against fleeing from justice. It may also be observed that possession of immovable property alone is not the proof of solvency of a surety and that in determining his fitness, the emphasis should be not on his financial capacity to back to the bond but on his capability to secure the presence of the accused at the trial in pretrial release.
7. In this case it appears that the learned II Additional Metropolitan Sessions Judge was not satisfied with the solvency of the sureties produced by the petitioner and admittedly no inquiry contemplated under sub-section (4) of Section 441 of the Code of Criminal Procedure was conducted. The learned Public Prosecutor also concedes that a direction may be issued to the learned II Additional Metropolitan Sessions Judge, Hyderabad to conduct an inquiry contemplated under sub-section (4) of Section 441 and pass appropriate orders.
8. In the above circumstances, the learned II Additional Metropolitan Sessions Judge, Hyderabad is directed to conduct an inquiry as to the sufficiency or fitness of the sureties contemplated under Section 441(4), Cr.P.C. The petitioner may file further affidavits or produce such evidence as he may be advised in support of sufficiency or fitness of sureties. The Public Prosecutor may also be given an opportunity to file affidavits or produce such evidence as he considers necessary with regard to the sufficiency or insufficiency or fitness of the sureties.
9. The Criminal Revision Case is accordingly allowed.
10. Revision allowed.