Shri. Chandan Saikia vs . State Of Meghalaya
2022 Latest Caselaw 426 Meg

     Serial No. 02
     Supplementary
     List

                       HIGH COURT OF MEGHALAYA
                           AT SHILLONG

Crl.Rev.P. No. 10 of 2022
                                                 Date of Decision: 03.08.2022
Shri. Chandan Saikia              Vs.                    State of Meghalaya
Coram:
               Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   :         Mr. R. Choudhury, Adv.
For the Respondent(s)             :         Mr. H. Kharmih, Addl. PP.

Mr. S. Sengupta, Addl. PP.

i)       Whether approved for reporting in                     Yes/No
         Law journals etc.:

ii)      Whether approved for publication
         in press:                                             Yes/No


                     JUDGMENT AND ORDER (ORAL)

1. This is an application filed under Section 397 read with Section

482 of the Code of Criminal Procedure primarily directed against an order

dated 19.05.2022 passed by the learned Special Judge, (POCSO), Shillong

in Special (POCSO) Case No. 66 of 2020.

2. Heard Mr. R. Choudhury, learned counsel for the petitioner who

has submitted that the petitioner herein is the accused in the said Special

(POCSO) Case No. 66 of 2020.

3. The petitioner was granted default bail by the Court and in this

regard, as part of the bail conditions, he has produced two sureties who

has stood as bailors to ensure his attendance before the Court. The

petitioner has then filed a petition before the Court with a prayer to

produce fresh sureties as one of the sureties has filed an application before

the Court with a prayer to discharge her from such liability and another

surety could not be contacted. The petitioner has then prayed before the

Court to allow fresh sureties who are his wife and his brother respectively.

4. The learned Court to determine the liability and competency as

well as solvency of the sureties had made certain queries and not being

satisfied with the answers given has, in particular come to the conclusion

that since one of the sureties is the petitioner's wife who happens to be the

sister of the survivor, therefore the element of influence of witnesses is

very apparent and on this ground, the sureties were not accepted, the

previous bail bonds are forfeited and the bail granted to the petitioner was

accordingly cancelled. He is therefore sent to judicial custody, submits

Mr. Choudhury.

5. The learned counsel has also submitted that on another

occasion, the mother of the petitioner had again preferred an application

before the Trial Court seeking the same relief, that is, for consideration of

the fresh bail bonds on behalf of the new set of sureties as aforesaid. The

Trial Court on consideration of the prayer vide order dated 19.05.2022 has

rejected the prayer and has held that since the accused has already

influenced two important witnesses for the prosecution, the situation

cannot be allowed to be continued as it will result in miscarriage of justice

and accordingly, the released of the accused/petitioner was not considered

until the evidence of the important witnesses have been recorded. This

opinion is based on surmises and conjecture which has resulted in a wrong

finding and as such, the same cannot be accepted.

6. It is therefore prayed that the impugned order may be set aside

and the learned Special (POCSO) Court may be directed to accept the

fresh sureties and consequently, the petitioner may be released on previous

bail.

7. Mr. H. Kharmih, learned Addl. PP on behalf of the State

respondent has submitted that the facts recorded by the learned Special

Judge, (POCSO) Shillong to the extent that the wife of the petitioner is

brought forward as one of the sureties and she is also the eldest sister of

the survivor and that she is also one of the prosecution witnesses, the

presumption that she may be influenced by the petitioner cannot be ruled

out. In this regard, the impugned order cannot be faulted and the learned

Special Judge has passed a reasoned order, the same may not be disturbed

by this Court.

8. On consideration of the submission made by the parties, what

can be understood is that the petitioner in order to be released on previous

bail, which bail was cancelled solely on the ground that the bonafide of

the new sureties cannot be relied upon by the Court since they are part of

the prosecution witnesses which, by implication suggests that the

petitioner has won them over, therefore they are found unsuitable as

sureties.

9. The law on bail and bonds is found in Chapter XXXIII of the

Code of Criminal Procedure, 1973, under the chapter, Section 441

provides for bond of accused and sureties and sub-Section 1 of the said

Section 441 provides that a person before he is released on bail on his own

bond for a sum of money as the police officer or the court may think

sufficient, and the bond shall be executed by such person and by one or

more sufficient sureties primarily to ensure that such person attends the

court or as directed by the police officer any such place designated. This

would imply that the person so released can execute a personal bond and

additionally, can also produce sufficient sureties on his behalf.

10. Section 447 is a provision which lays down the procedure in case

of insolvency or death of surety or when a bond is forfeited under the said

provision, it is provided that when any surety to a bond becomes insolvent

or dies or when the bond is forfeited, the court may order the person,

meaning the accused to furnish fresh security in accordance with the

directions of the original order. In common parlance, what can be

understood is that on the death, forfeiture or discharge of a surety, the

court can direct the accused to provide fresh sureties and only on failure

to do so, will the court proceed as if there has been a default to comply

with the original order or the previous bail.

11. In the case in hand, admittedly, the original sureties have got

themselves discharged from their bonds, one on the ground that she is

suffering and another on the ground that he could not be contacted,

prompting the petitioner to submit a list of fresh surety one of whom is his

wife and the other his brother. Prima facie, no disqualification could be

found against the fresh sureties as far as solvency is concerned, however

the Trial Court has gone on a different direction and consideration and has

rejected the fresh sureties on the ground that they have been influenced by

the petitioner.

12. There is nothing on record to prove that the petitioner has

influenced the sureties, particularly his wife who is said to be one of the

prosecution witnesses. Nothing is noted against the conduct and character

of the said surety and the reconsideration of bail could at best be confined

only to the issue of tampering of witnesses and evidence. However, as

pointed out there is no evidence or report in this regard especially from

the Investigating Officer and as such, the learned Trial Court could not

have come to any conclusion without any concrete evidence. The rejection

of the surety on this ground cannot be sustained.

13. Finding no fault with the antecedent of the solvency of the

sureties mentioned above, this Court finds that the impugned order has

been passed without jurisdiction.

14. Even by exercising powers under Section 482 Cr.P.C., this Court

for ends of justice on the presumption that the petitioner/accused shall not

abscond and that he shall maintain his appearance before the Court as and

when required would be inclined to set aside the impugned order and to

allow the petitioner to go on previous bail.

15. In view of the above, this petition is hereby allowed. The

impugned order dated 19.05.2022 (supra) is hereby set aside and quashed.

The learned Trial Court on presentation and consideration of the relevant

bail bonds produced shall allow the same and thereby cause released of

the petitioner/accused on bail with the previous conditions sustained.

16. Petition disposed of. No costs.

Judge

Meghalaya 03.08.2022 "D. Nary, PS"