Telangana High Court
Md.Azgar Ali vs The State, Station House Officer on 17 March, 2021
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CIMINAL PETITION No.1580 OF 2021
ORDER:
This Criminal Petition is filed by petitioner - accused No.3 under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Code'), to modify the order dated 19.12.2018 passed by the learned Special Sessions Judge for SCs/STs (POA) Act Cases - cum - VII Addl. District and Sessions Judge at Nalgonda, in Crl.M.P. No.349 of 2018 in Cr.No.139 of 2018 of Miryalaguda I Town Police Station, to the extent of reducing the bond amount to Rs.50,000/- by the sureties from Rs.5,00,000/-.
2. Heard Mr. V. R. Machavaram, learned counsel for the petitioner - accused No.3 and the learned Assistant Public Prosecutor appearing on behalf of respondent - State.
3. The learned counsel for the petitioner would submit that the learned Special Court while granting bail to the petitioner imposed certain conditions including the condition of executing a bond for Rs.5,00,000/- with two sureties for like sum each vide order dated 19.12.2018 in Crl.M.P. No.349 of 2018. He would further submit that the petitioner remains in judicial custody for the reason that he is unable to furnish a personal bond with two sureties for such huge amount on account of financial condition of her wife, who is a home maker and unaware of his business contacts. He would further submit that the petitioner is ready to execute a personal bond for Rs.1.00 KL,J Crl.P. No.1580 of 2021 2 lakhs and, therefore, he requested to modify the impugned order reducing the quantum of amount to Rs.1.00 lakh from Rs.5.00 lakhs.
4. The learned Assistant Public Prosecutor would contend that the petitioner should comply with the conditions imposed by the learned Special Judge in the aforesaid petition and he should not deviate the same.
5. A perusal of the record would reveal that the petitioner is still in judicial remand. The offences alleged against him are under Sections -302 read with 34 and 120B and 109 IPC and Section - 3 (2)
(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 in Crime No.139 of 2018 of Miryalaguda I Town Police Station. The learned Special Judge has granted bail to the petitioner vide order dated 19.12.2018 in Crl.M.P. No.349 of 2018 on imposition of certain conditions. One of the conditions imposed is that he shall execute a personal bone for a sum of Rs.5,00,000/- with two sureties for like sum each to its satisfaction. Since he is unable to furnish personal bond for such huge amount, he approached this Court by filing the present petition seeking to reduce the amount to an extent of Rs.1.00 lakh.
6. In Moti Ram v. State of Madhya Pradesh1, 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 1 . (1978) 4 SCC 47 KL,J Crl.P. No.1580 of 2021 3 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:
"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 KL,J Crl.P. No.1580 of 2021 4 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."
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 KL,J Crl.P. No.1580 of 2021 5 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 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."
7. In Kamla Bai Gopalrao Jamdar v. Chief Judicial Magistrate, Gwalior2, 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 2 1989 SCC Online MP 253 = 1990 Crl.L.J. 2550 KL,J Crl.P. No.1580 of 2021 6 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.
8. In Sagayam @ Devasagayam v. State rep. by the Inspector of Police, Chetpet Police Station, Chennai3, the Madras High Court has extensively discussed about the scope of the bail and 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.
3 . 2017 SCC OnLine Mad 1653 KL,J Crl.P. No.1580 of 2021 7
9. 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 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.
10. 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 KL,J Crl.P. No.1580 of 2021 8 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.
11. Further, if the surety has doubt on the appearance of the accused, or he do not likes to stand as a surety, he can apply to the Court for discharging himself from the surety bond. When a surety makes such a request, the Court cannot compel the surety to continue as a surety. In such an event, liberty should be given to the accused to substitute the surety. If any fraud is practiced upon the Court in furnishing surety bond, the Court has the power to cancel the surety bond in accordance with the procedure laid down under Section 446- A of the Code. Under the Code, there is provision for offering Cash surety in accordance with the provision under Section 445 of the Code. Even in fixing the cash surety, the amount should not be excessive. In the first instance, Court cannot demand Cash surety from the accused. The offer to make cash surety must come from the accused. Some times an accused, who is an utter stranger to the area or he has no friends or relatives in the area or he could not secure a person to stand as surety can offer cash surety. The Court can accept KL,J Crl.P. No.1580 of 2021 9 cash surety, instead of personal surety. But the Court cannot demand personal surety, property surety and cash surety, at a time. It is not cumulative. It is alternative.
12. It further held that there is a system of granting bail by the police. It is called 'Station bail'. In a bailable offence under Section 436 of the Code, the police is bound to release the accused on bail. In such circumstances, police can obtain bail bond from the accused. Police cannot demand any property document from him. A station bail cannot be cancelled by the police. Cancellation of bail is the exclusive power of the Court. A Magistrate or a Sessions Judge or any Court, demanding production of property documents or R.C. book or any other document to show proof of property either movable or immovable with respect to the bail bond or surety bond amount is against law. It is against Article 21 of Constitution of India. It is against the dictum of the Hon'ble Supreme Court judgment laid down in Maneka Gandhi vs. Union of India [AIR 1978 SC 597].
13. In State of Maharashtra v. Dadamiya Babumiya Sheikh4, 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 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 4 . AIR 1971 SC 1722 KL,J Crl.P. No.1580 of 2021 10 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.
14. In view of the above said authoritative pronouncements of law, coming to the case on hand, as discussed supra, the learned Special Judge has already granted bail in the month of December, 2018 with certain conditions including furnishing a personal bond for Rs.5.00 lakhs with two sureties for like sum each. He is unable to furnish personal bond for such huge amount on account of his financial capacity. It is relevant to note that the petitioner is in jail from 2018 onwards. Despite granting bail on 19.12.2018 by the Court below, he did not furnish sureties in compliance of the said order. In the said circumstances, he cannot be continued in jail despite granting bail merely on the ground of non-furnishing personal bond for certain amounts. He cannot be denied the benefit of bail.
15. As discussed supra, the prime object of the surety is to secure the presence of an accused for the purpose of concluding KL,J Crl.P. No.1580 of 2021 11 investigation and the trial after filing charge sheet. Therefore, the order dated 19.12.2018 passed by the learned Special Sessions Judge for SCs/STs (POA) Act Cases - cum - VII Addl. District and Sessions Judge at Nalgonda, in Crl.M.P. No.349 of 2018 in Cr.No.139 of 2018 of Miryalaguda I Town Police Station, is hereby modified to the extent of condition No.1 that the petitioner - accused No.3 shall execute a personal bond for Rs.1,00,000/- (Rupees one lakh only) with two sureties for like sum each to the satisfaction of learned Special Judge instead of Rs.5,00,000/- as ordered by the learned Special Judge. The learned Special Judge is directed to accept the sureties of petitioner - accused No.3 in the above manner. However, the other conditions shall remain unaltered.
16. Accordingly, the present Criminal Petition is allowed. As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 17th March, 2021 Mgr