Madhya Pradesh High Court
Kamla Bai Gopalrao Jamdar vs Chief Judicial Magistrate And Anr. on 12 September, 1989
Equivalent citations: 1990CRILJ2550
Author: R.C. Lahoti
Bench: R.C. Lahoti
ORDER R.C. Lahoti, J.
1. The grievance raised in this petition is of a nature which seldom comes up to this Court for adjudication.
2. Earlier on 1-7-89, the petitioner had addressed a letter-petition to this Court which was taken cognizance of under Section 482 Cr. P.C. she complained that the Chief Judicial Magistrate, Gwalior was not accepting the bail bonds offered on behalf of her son, who was an under-trial prisoner. At the hearing the petitioner absented herself and having perused the record, this Court observed that it was for the learned Magistrate to satisfy himself about the solvency or the bona fides of the surety; no action could be taken on a vague petition. It was dismissed summarily on 18-7-1989.
3. Thereafter the petitioner filed this petition in the nature of a writ petition seeking a direction to the C. J.M. Gwalior, to accept the bail bonds offered by the petitioner and release her son. A Division Bench of this court entertained the petition, but on being apprised of the rejection of the. earlier petition of the petitioner, formed an opinion that the petitioner could agitate the matter before the same Judge who has disposed of the earlier petition. The matter having been placed, before this Bench, the learned counsel for the petitioner submitted that the Division Bench by implication intended the petition to be, heard and disposed of under Section 482 Cr. P.C. The contention was accepted. The State had already filed a reply. Comments of C.J.M. Gwalior were called for.
4. On behalf of the State the only relevant fact stated is that the petitioner's son is an under-trial prisoner on charges under Section 302 I.P.C. in Crimes Nos. 92/74, 93/74 and 94/74 and under Section 307 I.P.C. in Crime No. 95/74 of P.S. Madhoganj, Lashkar. He was absconding. Challans were filed in his absentia. Later on he was arrested and produced before the Court. Comments of the C.J.M., Gwalior show that the surety bonds furnished by the petitioner were refused to be accepted not because of the surety being the mother of the accused, as is being complained of by the petitioner.
5. The learned C.J.M., Gwalior further pointed out that in all the 4 cases the accused has been allowed to go on bail in an amount of Rs. 10,000/- each, the surety bonds to be furnished to the satisfaction of C.J.M. Gwalior. In all the four cases, the petitioner, mother of the accused, proposed to stand as surety. In her affidavit she has declared that she owned a house apart from household articles and implements of agriculture. Copies of a certificate issued by the Municipal Corporation, Gwalior, showing that she owned the house, were filed in all the 4 cases. On perusal of the affidavit and the documents the C.J.M. found that the value of the house was not disclosed anywhere. The households articles and the agricultural implements were exempted from attachment under Section 60 of the Code of Civil Procedure and under Section 147 of the M.P. Land Revenue Code, 1959. As such, he found it difficult to accept the sufficiency of the surety in all the 4 cases. The offences charged against the accused were of serious nature and the petitioner was not able to satisfy the C.J.M. about herself and about her solvency. As he was not satisfied about the fitness or sufficiency of the surety, he refused to accept the surety bonds.
6. The sole ground stated in the petition and also forcefully pressed at the hearing by the learned counsel for the petitioner is that the learned C.J.M. Gwalior was not justified in refusing to accept the surety bonds merely because the surety happens to be the mother of the accused. On behalf of the State, the petition has been opposed by submitting that this Court would not be justified in interfering with the discretion exercised by the learned Magistrate.
7. The object underlying several provisions as to bails is to secure the presence of an accused at the trial. That has to be kept in mind not only while ordering release of an accused on bail, but also while accepting or refusing to accept his surety. No detailed procedure or guidelines are laid down in the Code of Criminal Procedure. The only useful provision to be found is in Sub-section (4) of Section 441 which reads as under:--
"441. Bond of accused and sureties:--
(1) to (3) etc. etc. (4) 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."
8. It is interesting to note that the parallel provision in the old Criminal Procedure Code of 1898, was as under:--
"419. Bond of accused and sureties.--
(1) & (2) etc. etc. (3) For the purpose of determining whether the sureties are sufficient, the Court may, it so thinks fit, accept affidavits in proof of the facts contained therein relating to the sufficiency of the sureties or may make such further inquiry as it deems necessary."
A reading in juxta position shows that the net has been made wider extending the extent of test by making it dual. Under the old Code it was enough if the authority accepting bail bonds was satisfied that the sureties were sufficient. Now the satisfaction has to be both on the ground of fitness and of sufficiency of the sureties. The Magistrate would be justified in refusing to accept the surety bonds if he was not satisfied about the fitness or sufficiency or both of the person offered to stand as surety for the accused.
9. Rules & Orders framed by the High Court for the guidance of Criminal Courts subordinate to it made the following provisions in Paras 382 and 383, viz:--
"382. Where the solvency of a surety is to be verified a statement of his assets and liabilities declared to be true and complete to the best of his knowledge and belief should be obtained from him and verified before he is accepted. Only realizable assets should be taken into consideration.
383. The responsibility for accepting a surety as solvent for the required amount is primarily that of the presiding officer who has demanded the security either -of his own accord or on being directed to do so by a superior court, and in ordinary cases he should discharge it himself by making such summary enquiry as in the circumstances of the case he may think fit. When the case is important or the amount of security demanded is large the presiding officer may ask the Nazir or the Naib-Nazir to enquire into the solvency of the surety and submit a report or ask the surety to produce a certificate of solvency from the Tahsildar.
Availability of moveable as well as immoveable assets with the surety, both may be taken into consideration so as to ascertain the fitness of the surety and readability of the assets in the event of an occasion arising for forfeiture of the bonds. As to how an inquiry is to be conducted, no procedure is laid down and hence the presiding officer faced with the task of forming an opinion would be free to devise and regulate his own procedure, of course keeping at a safe distance from whim, fancy and caprice.
10. Under Section 446(2), Cr. P.C. 1973, proviso, in the event of a bail bond being forfeited and penalty levied not being recovered, the surety is liable to imprisonment in civil jail for a term which may extend to 6 months.
11. 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. In Collector, Central Excise, Madras v. M/s Standard Motor Products, AIR 1989 SC 1298 their Lordships observed "Every Court has the right to arrange its own affairs."
12. Exercise of discretionary powers vested in a court is not open to interference at the hands of a superior court so long as it is exercised reasonably, in good faith and on correct grounds. An error of discretion should not be confused with error of jurisdiction nor with a mere difference of opinion. One may call the other quite unreasonable when he is well within the bounds of reasonableness. To exceed them he must be so wrong that no reasonable person would sensibly take that view.
13. 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.
14. In Edmund N. Schuster v. Asstt. Collector of Customs, New Delhi, AIR 1967 Punjab 189: (1967 Cri LJ 586) a question arose whether an artificial person like a Bank could stand as a surety. It was observed:--
"Sureties must be such persons as can, in all cases be imprisoned in case of default and as such surety bonds cannot be executed by artificial persons like banks."
"The whole object of execution of bonds by sureties is to secure the presence of a person facing a trial. In accepting or rejecting a surety, the court has to see that the sureties are persons of sufficient financial ability, and of sufficient vigilance to secure the appearance and prevent absconding of the accused. Such an obligation of vigilance cannot be effectively cast on a corporation or bank. Further, Section 514 clearly shows that sureties must be such persons as can in all cases be imprisoned in case of default."
15. Judged by the abovesaid standards, in the light of the comments furnished by the learned C.J.M., Gwalior, it cannot be said that the learned Magistrate was lacking in reasoning or in good faith or was not on correct grounds while refusing to accept the bail bonds furnished by the petitioner. It is requisite satisfaction of the learned Magistrate, and not of this Court, which is relevant. A superior Court would not be inclined to interfere with the exercise of such discretionary power ordinarily. Those at the lower rungs are closer to the field. They naturally have a closer view of the peculiarities of facts. They know and understand better the intricacies of situations before them. The are in a better position to smell what is what.
16. Exercise of jurisdiction of this Court is not warranted to give effect to any order under this Code or to prevent abuse of process of Court or otherwise to secure ends of justice, in the facts and circumstances of the case.
17. The petition is dismissed.