Kerala High Court
Ubaidulla vs State Of Kerala on 5 August, 2020
Author: V.G.Arun
Bench: V.G.Arun
CRL.MC.3400/2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942
Crl.MC.No.3400 OF 2020
AGAINST THE ORDER/JUDGMENT IN CMP 660/2020 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II,KOTTARAKKARA
CRIME NO.894/2020 OF PUTHOOR POLICE STATION , Kollam
PETITIONER/S:
UBAIDULLA,
AGED 43 YEARS
S/O. AHAMMED, DOOR NO.2/6 HOUSE, ARAM PUNNAI
VILLAGE, THRUNELVELI DISTRICT, TAMIL NADU, NOW
RESIDING AT CHIRAPPATTIL HOUSE, NEAR CHASHEWNUT
FACTORY, VALLABHAN KARA,PUTHOOR VILA, PUTHOOR P.O.,
KOLLAM DISTRICT
BY ADV. SRI.LIJI.J.VADAKEDOM
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031
BY PP SMT.SREEJA V.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC.3400/2020 2
V.G.ARUN, J.
-----------------------------------------------
CRL.M.C.No. 3400 of 2020
-----------------------------------------------
Dated this the 5th day of August, 2020
ORDER
The petitioner is the accused in the following cases; i. Crime No.894/2020 of Puthoor Police Station. ii. Crime No.309/2020 of Puthoor Police Station iii. Crime No.1661/2020 of Kottarakkara Police Station. iv. Crime No.174/2020 of Koodal Police Station. v. Crime No.416/2020 of Pathanamthitta Police Station. vi. Crime No.1309/2020 of Adoor Police Station. vii.Crime No.335/2020 of Pandalam Police Station. viii. Crime No.725/2020 of Chengannur Police Station. ix. Crime No.293/2020 of Changanacherry Police Station. The crimes are registered on the allegation that the petitioner had pledged spurious gold ornaments at various financial institutions and had availed loans, the total amount of which comes to Rs.15,08,500/-. The petitioner was arrested in connection with the crimes and was granted bail by the respective jurisdictional Magistrate Courts, subject to conditions.
2. This Crl.M.C is filed aggrieved by condition Nos. 1 and 2 in Annexure I order of the Judicial First Class Magistrate Court-II, Kottarakkara in Crime No.894 of 2020 of Puthoor Police Station. The objectionable conditions are;
CRL.MC.3400/2020 3
i) petitioner/accused shall execute a bond for Rs.50,000/- with solve sureties each for the like sum.
ii) one of the sureties shall have a fixed place of abode within the jurisdiction of this Court.
3. The learned counsel for the petitioner submits that the petitioner is a native of Tamil Nadu, doing business in Kerala and it is impossible for the petitioner to secure two local sureties to execute the bond. It is prayed that the petitioner may be permitted to deposit a reasonable amount in lieu of executing such bond. Reference is made to Section 445 Cr.P.C and reliance is placed on the decisions of the Honourable Supreme Court in Motiram and others v. State of Madhya Pradesh [(1978) 4 SCC 47] and Keshav Narayan Banerji and another v. State of Bihar [AIR 1985 SC 1666].
4. The learned Public Prosecutor points out that stringent conditions haven been imposed by the jurisdictional courts to ensure the continued presence of the petitioner during the course of investigation.
5. I find merit in the submissions made by the learned counsel for the petitioner. The very purpose of Section 445 Cr.P.C, providing for deposit instead of recognizance, is to ensure that a person is not denied an opportunity to be enlarged on bail merely for the reason that he is unable to execute bond, with or without sureties. Section CRL.MC.3400/2020 4 445 Cr.P.C provides for deposit of a sum of money or Government Promissory Note to such amount as the Court may fix in lieu of executing the bond. The learned counsel for the petitioner submits that in Crime No.293 of 2020 of Changanachery Police Station, the Judicial First Class Magistrate Court-I, Changanachery granted bail to the petitioner on deposit of Rs.40,000/- in lieu of bond.
6. As held by the Honourable Supreme Court in Motiram (Supra), there cannot be any insistence that the sureties shall be from within a particular region or even State. This in this context that the Apex Court held as under;
"33. 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, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or 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 by such provincial allergies. What law prescribes sureties from outside or non-regional language 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, sometimes legalistic. Article 14 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 CRL.MC.3400/2020 5 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.
7. On consideration of the rival contentions, the total amount involved, and the dictum laid down by the Honourable Supreme Court, I find that an amount of Rs.40,000/- can be fixed as the amount to be deposited in lieu of recognizance.
In the result, the Crl.M.C is allowed. Condition No.2 in Annexure I is deleted and condition No.1 is modified as follows;
"i) The petitioner shall deposit an amount of Rs.40,000/- with two solvent sureties each for the like sum.
ii) The jurisdictional Magistrate shall not insist that the sureties shall be from Kerala. In case, the petitioner provides sureties from Tamil Nadu, authentic translation of the documents to be submitted along with the bond to prove their solvency shall also be produced."
Sd/-
V.G.ARUN, JUDGE vgs CRL.MC.3400/2020 6 APPENDIX OF Crl.MC 3400/2020 PETITIONER'S/S EXHIBITS:
ANNEXURE-I THE COPY OF THE ORDER DATED 19.6.2020 IN CMP NO.660/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II,KOTTARAKKARA ANNEXURE-II THE COPY OF THE ORDER DATED 19.6.2020 IN CMP NO.659/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II,KOTTARAKKARA ANNEXURE-III THE COPY OF THE ORDER DATED 22.6.2020 IN CMP NO.2220/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOTTARAKKARA ANNEXURE-IV THE COPY OF THE ORDER DATED 22.6.2020 IN CMP NO.2079/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PATHANAMTHITTA ANNEXURE-V THE COPY OF THE ORDER DATED 25.6.2020 IN CRL.MP NO.1008/2020 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT,PATHANAMTHITTA ANNEXURE-VI THE COPY OF THE ORDER DATED 27.5.2020 IN CRL.MP NO.859/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT,ADOOR ANNEXURE-VII THE COPY OF THE ORDER DATED 27.5.2020 IN CRL.MP NO.860/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT,ADOOR ANNEXURE-VIII THE COPY OF THE ORDER DATED 13.7.2020 IN CMP NO.1418/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT,CHENGANNUR ANNEXURE-IX THE COPY OF THE ORDER DATED 22.5.2020 IN CMP NO.1931/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1,CHANGANACHERRY