A.P. Asharaf and Others vs State

K.T. Thomas, J.—It is very unfortune that six persons involved in a bailable offence were not bailed out in spite of their offer to give bail with two solvent sure ties each. The magistrate, for all practical implications, converted the bailable offence into a non-bailable one through his order. It is distressing to note that he was unmindful of the clear "exhortations made by this Court in Valson v. State of Kerala (1984 KLT 443) in which Bhat, J (as this lordship then was) gave advice to the judicial functionaries in unmistakable terms that:

courts would do well to remember that the purpose of insisting on sureties is only to ensure the presence of the ''accused in court for the purpose of trial and nothing more. Where from the facts and circumstances in a given case it is possible to come to the conclusion that there is no likelihood of ''bail jumping'' by the accused who is released on personal bond it would be utterly arbitrary to insist on sureties. Even where sureties are insisted on, ordinarily, due weight must be given to the affidavits produced by the sureties and an enquiry or insistence on a solvency certificate must be the exception rather than the rule

The facts are simple. Six persons were travelling in a Maruthi car on 9-12-92. Since a prohibitory order (issued by the District Magistrate under Sec. 21 of the Kerala Police Act) was in force then, the [car was checked by the police and they found dagger and knife in it. So, the police arrested those six persons for the offence under Sec. 57 of the Police Act. The section contains only a bailable offence. Under it "whoever contravenes any prohibition made u/s 21............shall on conviction be liable to imprisonment for a term which may extend to one month or to fine which may extend to one hundred rupees or to both".

The six persons were produced before the magistrate only on 10-12-1992. Although they moved an application for bail on the same day, the magistrate remanded them to jail and posted the bail application to next day. The sureties produced basic tax receipts before the magistrate to prove that they are solvent. However, learned magistrate did not act on them saying thus :

I am not satisfied with the basic tax receipts produced by the sureties to hold that they are solvent. They have not produced any solvency certificate issued by the competent [authority. 1 am told by the defence counsel that it will take time to obtain solvency certificate. I do not think that accused are to be detained in jail merely for the reason that no solvency certificate is produced by sureties. So it will be sufficient to order the sureties to deposit bond amount"

Learned magistrate then ordered that bail shall be granted to the six persons on their executing a bond for Rs. 5,000/- each with two solvent sureties each "on their depositing a sum of Rs. 5,000/-" This meant that petitioners had to deposit a total of Rs. 60,000/.

Those six persons then moved the Sessions Court challenging the order of the magistrate. Learned Sessions Judge pointed out in his order that the Public Prosecutor did not seriously oppose the contentions of those six persons. Learned Sessions. Judge further said in his order that the magistrate has not complied with Sec- 441(4) of the Code of Criminal procedure (for short the Code) before rejecting the tax receipts produced by the sureties. But the strange part of Sessions Judge''s order is that he directed the sureties to produce solvency certificate obtained from a Tahsildar Those six persons have therefore filed this petition under Sec. 482 of the code after depositing the huge amount.

Shri. V. Ramkumar learned counsel for the petitioners appealed to this Court that such a fate may not visit persons involved in bailable offences in future. Counsel contended that the orders passed by the magistrate and the sessions ludge are liable to be interfered with at least for reiterating the guidelines to be followed in future.

I doubt whether any other person (involved in a petty bailable offence) had to undergo so much travails and tribulations. The police who arrested them took maximum leverage by keeping them in their custody for almost the 24 hours'' period permitted by law. But even after they were produced before the magistrate their agony did not abate due to mon - exercise of judicial power on the first day, and due to wrong exercise of judicial discretion on the second day. The inertia displayed by the magistrate on the first day when the petitioners offered bail deserves only reprobation. The magistrate sought to justify his strange action by saying that "the possibility of altering charge cannot be ruled out at this stage". It was on such an inept reasoning that the magistrate imposed a seemingly unbearable condition on the persons involved in a relatively far less serious bailable offence.

Learned Sessions Judge also went wrong in insisting on production of solvency certificates obtained from the Tahsildar in this particular case. At both ends it should have been noted that it is the right of the accused (who is involved in a bailable offence) to be at large and that is the very raison de''tre of Parliament drawing a hiatus between two categories or offences - bailable and non - bailable. Sec. 436 (1) of the Code contains a mandate that when any person (other than a person accused of a non - bailable offence) is produced before a court, he "shall" be released on bail if he is prepared to give bail. First proviso to the sub - section says that even if he is not prepared to give bail, court has the discretion to release him on his executing a bond without sureties for his appearance. The contingency, in which such a person can be detained in custody, arises when he fails to comply with the conditions of bail bond as regards time and place of his attendance. Of course, the Supreme Court said that even in bailable offences the High Court has inherent powers to cause him to be arrested and committed to custody if it is found at any subsequent stage of the proceedings that such person is intimidating, bribing or tempering with prosecution witnesses or is attempting to abscond. However, the Supreme Court then pointed out that jurisdiction to cancel his bail "springs from the overriding inherent powers of the High Court and can be invoked only in exceptional cases when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody" (vide Ratilal Bhanji v. Asst. Customs Collector (AIR 1967 S.C. 1639).

The Law Commission is its 41st Report has laid down the broad principles to be adopted in regard to bail. Among them one of the most important was that "bail is a matter of right if the offence is bailable. In paragraph 39-2 of the Report, Law Commission said that "right to bail is absolute in the case of bailable offence". However, Law Commission considered the suggestion that when once a person is released on bail and if he fails to appear before the court on the date or dates fixed subsequently, be should forfeit his right to be released on bail. Law Commission then recommended that in the latter case a discretion can be conferred on the court either to grant or to refuse bail. It was on the strength of the aforesaid recommendations that Sec. 436 (3) of the Code was enacted by the Parliament in the present form.

What is meant by "giving bail"? Though the expression is not defined the Code, its import can be gathered from the context itself. Sec. 436 of the Code contemplates two kinds of bail. (1) simple recognizance of the principal and (2) Security with sureties. The first is called either self-bond or personal recognizance. It was once considered that giving bail is involved only in the latter (vide Stallman v. Emperor 15 C.W.N. 736).

However, Supreme Court said in Moti Ram and Others Vs. State of Madhya Pradesh, that when accused gives a bond, with or without sureties, he gives bail. Thus giving bail, in practical parlance, means the execution of a bond containing an undertaking that the accused would attend at such place and at such time as the court may direct. Since Sec. 436 (1) of the Code says that when a person brought before a magistrate on an accusation of a bailable offence, he shall be released if he is prepared to give bail, it must be regarded as a legislative mandate which the court should not stud with its own hurdles.

Sec. 440 of the Code says that the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive. Here when the offence alleged is Sec. 57 of the Police Act and if the accused were to be imposed with the maximum sentence of fine the imposition cannot exceed rupees one hundred per person. But the accused were asked to give a deposit of Rs. 60,000/- if they were to be released during pre-conviction stage.

Sec. 441(4) of the Code empowers the court to accept affidavits in proof relating to sufficiency or fitness of sureties. When the court is not satisfied with such affidavits court may have to conduct an enquiry to determine the sufficiency or fitness of sureties. Neither the magistrate nor the Sessions Judge has advanced any reason why they were not satisfied with the affidavits filed in this case. I have no manner of doubt that there was failure of justice when the petitioners had to suffer incarceration due to abdication of judicial function on 10-12-92 and due to inept exercise of judicial [discretion on the next day and due to pedantic insistence on production of solvency certificate during the subsequent stage.

I quash the orders of the magistrate as well as the Sessions Judge and replace them with the order directing the petitioners to execute a bond in a sum of Rs. 500/- each with one surety each. The surety need file an affidavit (if not already filed) as envisaged in Sec. 441 of the Code and need not produce any solvency certificate in this case. The magistrate is directed to refund the amount collected from the sureties without any delay.

Crl. M.C. is disposed of accordingly.