Md.Azgar Ali vs The State, Station House Officer
2021 Latest Caselaw 808 Tel

            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

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

. (1978) 4 SCC 47 KL,J Crl.P. No.1580 of 2021

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

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

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

1989 SCC Online MP 253 = 1990 Crl.L.J. 2550 KL,J Crl.P. No.1580 of 2021

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.

. 2017 SCC OnLine Mad 1653 KL,J Crl.P. No.1580 of 2021

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

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

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

. AIR 1971 SC 1722 KL,J Crl.P. No.1580 of 2021

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

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