Madras High Court
M.Siva Subramanian vs The State on 24 October, 2017
Author: M.S. Ramesh
Bench: M.S. Ramesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.09.2017
PRONOUNCED ON : 24.10.2017
CORAM
THE HONOURABLE MR. JUSTICE M.S. RAMESH
CRL.O.P.No.19984 of 2017
M.Siva Subramanian ...Petitioner
Vs
The State
Rep. By the Inspector of Police,
C.C.B., AVS II,
Chennai. ...Respondent
PRAYER: Criminal Original Petition filed under Sections 482 and 483 of Cr.P.C, to direct to the Judicial Magistrate's Court No.I, Ponnamallee to accept the surety of the person who shows the instruments defined by this Honorable Court as proof of residence; relieve Mr.Ramasamy, son of Srinivasan from suretyship, who stood earlier as surety for return of vehicle bearing Registration No.TN-09-BC 9911; and return the photocopies of the documents filed by him.
For Petitioner : Mr.V.Padmanabhan, Senior Counsel
for Mr.S.B.Viswanathan
For Respondent : Mr.P.Govindarajan
Additional Public Prosecutor
*****
O R D E R
The prayer in the present petition is to direct to the Judicial Magistrate's Court No.I, Ponnamallee to accept the surety of the person who shows the instruments defined by this Honorable Court as proof of residence; relieve Mr.Ramasamy, son of Srinivasan from suretyship, who stood earlier as surety for return of vehicle bearing Registration No.TN-09-BC 9911; and return the photocopies of the documents filed by him.
2. The brief facts of the case is as follows:-
3. The respondent police had registered a case in Crime No. 55 of 2013 against 1.Sujatha, 2. Jayalakshmi, 3. Murali and 4. Suresh Babu for the offences under Sections 3(2)(a), 4(1), 5(1)(a) of the Immoral Trafic (Prevention) Act on 06.09.2017. The petitioner herein is not an accused in the aforesaid crime.
4. The case of the prosecution is that a car bearing registration no.TN09 DL 1911 belonging to the petitioner, was seized by the respondent in connection with the said crime. Since the car was seized by the respondent police, the petitioner herein had filed Crl.MP No. 4894/2013, under Sections 451 and 457 Cr.PC, seeking for return of the said vehicle and by an order dated 13.09.2013, the learned Judicial Magistrate No.I, Poonamallee had allowed the said petition on condition that the petitioner shall execute a personal bond and furnish surety to the tune of Rs.14 lakhs.
5. Pursuant to the said order, the petitioner had furnished a surety of one Ramasamy S/o. Srinivasan by depositing his original sale deed, dated 03.03.2004, registered under Document no. 683 of 2004. Subsequently, when the said surety, namely Ramasamy had requested the petitioner to discharge him from the surety, the petitioner herein had filed a petition under Sections 451 and 450 of Cr.PC before the learned Judicial Magistrate No.I, Poonamallee for changing the surety namely Ramasamy and substituting the same with one Kishore Kumar by furnishing new property.
6. The said petition came to be returned on 31.08.2016 by the learned Judicial Magistrate No.I, Poonamallee, stating that the petition was not maintainable. The petitioner had re-presented the returned papers on 03.10.2016, clarifying the queries raised by the learned Judicial Magistrate. However, on 05.10.2016, the learned Judicial Magistrate had once again returned the petition as not maintainable. As against the same, the petitioner had approached this Court in Crl.OP. 24676 of 2016. By order dated 10.11.2016, this Court had allowed the said petition and directed the learned Judicial Magistrate to entertain the petition and pass orders in accordance with law after testing the new solvent surety.
7. Pursuant to the direction of this Court, the petitioner had once again approached the Judicial Magistrate No.I, Poonamallee with a fresh surety memo dated 24.01.2017. However, the petition was returned with a remark to produce a solvency certificate for the fresh surety. When the petitioner re-produced the petition, the same was rejected by the learned Judicial Magistrate No.I, Poonamallee on 30.01.2017 for failure to produce solvency certificate, which order, is under challenge in the present petition.
8. I have carefully considered the submissions made by Mr.V.Padmanabhan, learned Senior Counsel appearing for the petitioner and Mr.P.Govindarajan, learned Additional Public Prosecutor appearing for the respondent.
9. Mr. V.Padmanabhan, the learned Senior Counsel appearing for the petitioner submitted that sureties can be discharged under the provisions of Sections 440 to 446 of Cr.PC and hence, the learned Judicial Magistrate was not justified in stating that the petition was not maintainable. The learned Senior Counsel, by relying upon the judgment of this Court reported in 2017 (3) CTC 291 (Sagayam @ Devasagayam Vs.State rep. by the Inspector of Police, G-7 Chetpet Police Station, Chennai), submitted that there was no justification or legality on the part of the learned Judicial Magistrate to insist for the solvency certificate of the property sought to be substituted.
10. The learned Additional Public Prosecutor, on the other hand, submitted that since the petitioner's vehicle was involved in the aforesaid crime and the case is under investigation, it would be appropriate that adequate surety to be furnished for the purpose of securing the vehicle.
11. Before answering the core issue, it would not be out of place to mention here that the learned Judicial Magistrate, at the first instance, was not justified in imposing an onerous condition to produce a solvent surety to the tune of Rs.14 lakhs for the purpose of releasing the vehicle. After having taken the decision to release of the vehicle, there was no necessity for the learned Judicial Magistrate to impose an onerous condition for release of the vehicle without any basis. There was no material before the learned Judicial Magistrate to arrive at an amount of Rs.14 lakhs as surety amount. Admittedly, the case is under investigation. The purpose of the seizure is to enable the prosecution to lead evidence in proving its case. During various circumstances, the Apex Court and this Court had observed that the seized vehicles should not be allowed to lie idle exposed to natural calamities and have ordered for return of the vehicles. The police officer, seizing the vehicle, is empowered under Section 102 Cr.P.C to return the custody on the strength of a bond undertaking to produce the property before the Court, as and when required. While the code itself insists for an bond of undertaking, imposure of an onerous precondition for release is unwarranted and such a condition is not contemplated under the Code.
12. In this connection, the question of the powers of the trial Court imposing onerous condition while granting bail was elaborately discussed in the following judgements:
(i). In Sandeep Jain Vs. National Capital Territory of Delhi (2000 (2) SCC 66) the Hon'ble Supreme Court has held that any bail condition which is in the nature of onerous condition, is against law.
(ii). In Ramathal & Others Vs. Inspector of Police & Another (2009 (12) SCC 721) the Hon'ble Supreme Court did not approve a bail condition of the Subordinate Court to deposit huge amount.
(iii). In Sakthivel Vs. Inspector of Police Belukurichi Police Station Namakkal District (2015 (2) MWN (Cr.) 438), this Court held that the bail condition should be executable and it should not be onerous and oppressive in nature.
(iv). In Navaneetha Krishnan Vs. Inspector of Police Natrampalli Police Station Vellore District [2015 (2) MWN (Cr.) 53], this Court had observed that the conditions which are in the nature of and which could not be complied with by the accused, would be like granting bail by one hand and taking it away by another hand.
13. Coming to the issue in the present case, the learned Magistrate was not justified in refusing to replace the original surety on the ground of non-production of solvency certificate. As rightly pointed by the learned Senior Counsel, no prejudice would be caused to the investigation, if the original surety was to be replaced by another surety. I am unable to comprehend the original reason of the learned Judicial Magistrate that there is no provisions of law for permitting the petitioner to replace the original surety. When the learned Judicial Magistrate has no powers to impose an onerous condition directing the petitioner to produce a solvent surety, there is no justification in insisting upon production of a solvency certificate for the subsequent surety sought to be replaced. It is always well within the domain of the learned Magistrate to replace the original surety that was accepted by him, pursuant to his own orders, without insisting for solvency certificate.
14. It is pertinent to mention here that the Section 444 Cr.PC provides for discharge of all or any surety, who is entitled to make an application to the concerned Magistrate to discharge the bond either wholly or insofar it relates to the applicant. On such an application being made, it is open to the learned Magistrate to discharge such surety. The principle with regard to discharge of surety relating to bail bonds will be equally applicable to the present case also. As indicated under Section 441 of Cr.P.C, at the most, the learned Magistrate can insist for an affidavit in proof of the fact that the surety is fit or sufficient.
15. The learned Senior Counsel has also placed reliance on the order of this Court in Sagayam @ Devasagayam Vs. State of Tamil Nadu, reported in 2017 (3) CTC 291 and submitted that the impugned order demanding furnishing of solvency certificate and rejecting the petitioner's request for substituting the original surety, is violative under Article 211 of the Constitution of India. In the said order, a learned Bother Judge of this Court had elaborately dealt with the procedures for offering of sureties and deprecated practice of criminal courts insisting upon production of various documents by surety for the value of bonds. Some of the relevant portions of the said judgment is as follows;
i).The High Court deprecates the practice of Judicial Magistrates demanding production of VAO Certificate signed by officials Onerous conditions imposed by court Provisions relating to bonds and surety bonds cannot whittle down the fundamental rights under Article 21 of the Constitution of India Courts cannot demand property documents from accused persons and sureties.
ii).At paragraph 68, it is is held that it cannot be denied that a bogus person should not be accepted as surety. A person who is offering surety must have acceptable residential proof. Even a begger can be a surety.
iii).At Paragraph 33, it is held that while fixing the bail/surety amount, the Court must take into account the circumstances of the case and the bail bond or surety bond should not be onerous.
iv).At paragraph 37, it is held that the surety should be a fit person and the sureties are expected to file surety affidavits. The Court can conduct surety verification to ascertain the fitness of persons under the garb of conducting verification and there cannot be a cruelling exercise. There cannot be indignation to a surety.
v).At Paragraph 39, it is held that the surety bond is given the Court and it is a bond between surety and Court.
vi).At paragraph 54(16), it is held that imposition of onerous and stringent conditions amount to denial of the relief.
vii).At paragraph 66, it is held that the Court cannot expect the surety to be a propertied person.
viii).At paragraph 60 it is held that the Magistrate or Sessions Judge and any Court demanding property documents is against law and offending Article 21 of the Constitution of India and against the dictum laid down in Menaka Gandhi Vs.Union of India.
ix).At paragraph 61, is is held that demanding production of VAO Certificate and Solvency Certificate is against Criminal Rules of Practice and it is not useful thinking, but useless thinking.
x).At paragraph 65, who is a surety has been defined.
xi).At paragraph 73, some 30 instruments to be offered as surety is defined, which includes Aadhar Card, Voter's Identity Card, Driving License, EB Bill, Gas Connection Bill etc., for valid residential proof.
16. I am of the considered view that the observations made in the aforesaid judgment is the correct procedure to be adopted. In view of my earlier finding that the original condition to produce a solvent surety itself is opposed to law, I am constrained to hold that the learned Judicial Magistrate is not correct in refusing to replace the original surety by demanding the petitioner to produce a solvency certificate.
17. In the result, the Criminal Original Petition stands allowed. The learned Judicial Magistrate No.I, Poonamallee is directed to accept the surety of any person having valid residential proof and replace the same with that of original surety namely Ramasamy, S/o. Srinivasan and consequently discharge the surety Ramasamy by returning the documents filed by him. Such an exercise shall be completed within a period of one week from the date of receipt of a copy of this order.
24 .10.2017 Index: Yes/No Internet: Yes/No ak M.S.RAMESH. J., ak To
1. The Inspector of Police, C.C.B., AVS II, Chennai.
2. The Public Prosecutor, High Court, Madras.
Pre-Delivery Order CRL.O.P.No.19984 of 2017 24.10.2017