Saturday, 25 July 2020

When Magistrate should not direct production of solvency certificate for release of accused in bailable offence?

 It is obvious that the criminal courts are not bestowing adequate thought and attention to the desirability of granting bail on personal bond in cases where such a course is called for. This leads to orders insisting on sureties and at times, as in this case, to orders requiring production of solvency certificates, which, as observed by the Supreme Court, is more often than not capable of generating a chain of corruption and resulting in unjust incarceration of the accused who deserves to be free. 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 accused in this case is the driver of an autorickshaw. Evidently the accused ekes out has livelihood by plying the autorickshaw. In the process, he violated some provision of law, the maximum punishment for his offence being imposition of fine of Rs.100/-. Perhaps he might have preferred to offer cash bail of Rs.100/- or so. Considering the manner and source of livelihood of the accused, the court would have done well to direct his release on his personal bond. But, the court insisted on solvent sureties and when solvent sureties came forward with affidavits and Tax receipts, the court rejected the affidavits without indicating the reason for doing so. Rejection of affidavits would naturally involve serious consequences to the accused. Compelling him to produce solvency certificate would also involve serious consequences. An order involving such serious consequences should normally be supported by reasons which could be tested by the higher courts. It is regrettable that the learned Magistrate has not cared to indicate any reason for rejecting the affidavits. This was a case where the accused should have been directed to be released on personal bond or at any rate, released after accepting the sureties offered. At any rate, accused could have been released on interim bail, pending enquiry into fitness or sufficiency of the sureties. Accused, could have been spared the indignity of spending a night in prison; Courts entrusted with vast power are expected to exercise the power lawfully reasonably and justly.

IN THE HIGH COURT OF KERALA

Crl. M.C. 92 of 1984

Decided On: 28.03.1984

 Valson  Vs.  State of Kerala

Hon'ble Judges/Coram:
U.L. Bhat, J.
Citation: MANU/KE/0230/1984



1. The petitioner herein, an autorickshaw driver, accused in S.T. No. 1403/83 on the file of the Judicial Magistrate of the Second Class, Trichur, was charged with an offence under Section 86(1) of the Motor Vehicles Act and Rule 328 of the Motor Vehicles Rules. He appeared in Court on 20-12-1983 in response to summons and offered bail. Bail was ordered on condition that he executes a bond of Rs.500/- with two solvent sureties in the like amount. On behalf of the petitioner, two persons, Velu and Rajan offered themselves as sureties and filed affidavits, stating that they were prepared to stand surety, that they have landed property worth Rs.l0,000/- without any encumbrance, that they will not encumber the property as long as their responsibility as sureties lasts and that they undertake to produce the accused in court whenever required. They also produced tax receipts evidencing payment of land revenue for their land. On the same day the court passed an order stating:

But I am not satisfied with the same (i.e. tax receipts) and hence their affidavits are rejected. Produce solvency certificate, posted for evidence to 3-1-84. Accused remanded to Special Sub Jail, Viyyur.
Luckily for the petitioner, on the very next day, that is on 21-12-83, the sureties produced solvency certificates which were accepted by the court and the petitioner was released on bail. The petitioner is aggrieved by the order of the trial court rejecting the affidavits and remanding him to judicial custody, the consequence of which was that he had to spend the night in prison. Learned counsel for the petitioner submitted that ordinarily criminal court is expected to act on the affidavits sworn to by the sureties and in case the sufficiency of the sureties is in doubt, it would be open to the court to conduct an enquiry about the sufficiency, but meanwhile the affidavits have to be acted upon and the accused has to be released. According to the learned counsel, the procedure adopted by the trial court was illegal and derogatory to valuable Constitutional and legal rights vesting in the accused. Learned Public Prosecutor submitted that there was nothing illegal in the procedure followed by the learned Magistrate.

2. Section 436 of the Code of Criminal Procedure provides for grant of bail to persons accused of bailable offences. Section 437 relates to non-bailable offences. Special powers of the High Court and the Sessions Court are dealt with in Section 439. Sub-section (1) of Section 440 states that the amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. Sub-section (2) empowers the High Court or the Sessions Court to reduce bail required by a police officer or Magistrate. Section 441 deals with the bond to be executed by the accused and sureties. Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer, or Court, as the case may be. Where a condition is imposed, the condition also shall be mentioned in the bond. Sub-section (4) states that for the purpose of determining whether the sureties are fit or sufficient, the court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the court, as to such sufficiency or fitness. Section 442 requires that as soon as the bond has been executed the person for whose appearance it has been executed shall be released; and when he is in jail, the court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the order shall release him. Section 443 lays down that if, through mistake, fraud, or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and on his failing so to do, may commit him to jail. The other sections in Chapter XXXIII are consequential provisions.

3. Though Section 436 may appear to indicate that there is difference between release on bond and release on bail, the Supreme Court has made it clear in the decision in Motiram & others v. State of Madhya Pradesh, 1978 KLT 747 that the expression 'bail' covers the bond executed by the accused whether C with or without sureties. Whether it be a case involving bailable offence or a case involving non-bailable offence, it is in the discretion of the court to direct whether sureties should be furnished or not. The discretion in this behalf must be exercised on a consideration of all the relevant facts and circumstances of the case.

4. We are now concerned with a case where the criminal court directs that sureties must be furnished to fulfil the condition of the bond. The manner in which sureties are to be offered and what exactly the court has to do when such sureties are offered is indicated in Section 441 of the Code. When a person is offered as a surety, he is expected to swear to an affidavit containing relevant averments such as his financial ability to satisfy the bail condition in case of breach and his readiness to produce the accused in court when required to do so etc. It is open to the criminal court to accept the affidavit sworn to by the surety in proof of the facts stated therein and be satisfied about his sufficiency and fitness. When the affidavit is accepted the court will naturally proceed to the next step viz., taking the bond from the accused and the surety; where bond or bonds are executed, the accused has to be released or directed to be released under Section 442 of the Code.

5. There may be cases where the court may not be in a position to accept the affidavit at face value. It is to avoid such situations that a practice has grown up in the State whereby the surety produces tax receipts or other documents or sometimes even solvency certificate. Such document or documents may be sufficient to satisfy the court about the fitness or sufficiency of the surety. Where any such document is not produced or even in extreme cases where document is produced but the court finds sufficient ground not to act upon the same, the court is at liberty to hold an inquiry or cause an enquiry to be made by subordinate Magistrate as to such sufficiency or fitness. If as a result of such enquiry the court is satisfied regarding the fitness or sufficiency of the surety, there would be no difficulty. But difficulty would arise where the court is not prepared to act on the affidavit and/or document produced earlier or even after enquiry, it is not satisfied regarding the fitness or sufficiency of the surety. In either case the court cannot be compelled to release the accused. Release could take place only when bond is executed and bond is taken only when the court is satisfied about the fitness or sufficiency of the surety. But, this is not to say that in all cases and irrespective of the facts and circumstances of the case, the 1 accused should continue in custody till a fresh bond with acceptable surety is executed. The court has power either to release the person on interim bail for the moment accepting the affidavit for the purpose of interim bail and calling upon the accused to produce satisfactory surety or to produce documents relating to surety's assets (if not produced) or grant bail to the accused on his own personal bond, subject to production of satisfactory surety within a time to be fixed by the court.

6. Ordinarily it must be possible for the criminal court to act on the affidavit produced by the surety. An affidavit is a solemn document solemnly affirmed. Prima facie the affidavit is entitled to be taken at it's face value. It could be accepted even without tax receipt or document in appropriate cases. As a matter of practice, surety produces Tax receipts or other documents along with the affidavit. Ordinarily, from an examination of the tax receipts, the court must be in a position to assure itself about the sufficiency of the surety. In extreme cases where the court, for valid reasons, chooses to reject the sureties offered, it must certainly be possible for the court-to grant interim bail on the basis of the affidavit or affidavit supported by Tax receipt or release the accused on his own personal bond.

7. This liberal interpretation of the bail provisions is certainly warranted in the light of the judicial recognition of the expanding horisons of Article 21 of the Constitution. In Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : AIR 1978 SC 597, the Supreme Court emphasised that any procedure, in order to he compatible with Article 21 of the Constitution must be reasonable, just or fair. Any provision of law which lays down a procedure which is not reasonable or just or fair carries with it the risk of being regarded as unconstitutional and illegal. Hence the endeavour of Courts must be to read and interpret the relevant provisions so as to bring them in harmony with the constitutional principles.

8. A strict or pedantic understanding of the bail provisions has led to distortions in the criminal judicial process. The following passage from the report of the Gujarat Legal Aid Committee presided over by Bhagwati J., extracted in the judgment in Motiram's case is relevant;

The evil of the bail system is that either the poor accused has to fall back on touts and professional sureties for providing bail or suffer pre-trial detention. Both these consequences are fraught with great hardship to the poor. In the one case the poor accused is fleeced of his moneys by touts and professional sureties and sometimes has even to incur debts to make payment to them for securing his release; in the other he is deprived of his liberty without trial and conviction and this leads to grave consequences.

Bhagwati J. in Hussainara Khatoon v. State of Bihar, MANU/SC/0119/1979 : AIR 1979 SC 1360 emphasised this aspect in the following words:

Even under the law as it stands today the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties. That concept is outdated and experience has shown that it has done more harm than good......If the court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond it can safely release the accused on his personal bond.

Dealing with the enquiry into solvency, the learned Judge observed:

The enquiry......can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond.

The Supreme Court in Vijaysingh v. Kurarilal, MANU/SC/0027/1979 : AIR 1979 SC 1719, while dealing with the case of an Advocate who gave an improper certificate of solvency of surety for his client, observed as follows:

......it is a common phenomenon in our country that bail has too often become a bogey and an instrument of unjust incarceration. There are some magistrates who are never satisfied about the solvency of sureties except when the property of the surety is within their jurisdiction and Revenue Officers have attested their worth. This harasses the poor and leads to corruption as pointed out by this Court in Moti Ram's case.......

9. It is obvious that the criminal courts are not bestowing adequate thought and attention to the desirability of granting bail on personal bond in cases where such a course is called for. This leads to orders insisting on sureties and at times, as in this case, to orders requiring production of solvency certificates, which, as observed by the Supreme Court, is more often than not capable of generating a chain of corruption and resulting in unjust incarceration of the accused who deserves to be free. 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 accused in this case is the driver of an autorickshaw. Evidently the accused ekes out has livelihood by plying the autorickshaw. In the process, he violated some provision of law, the maximum punishment for his offence being imposition of fine of Rs.100/-. Perhaps he might have preferred to offer cash bail of Rs.100/- or so. Considering the manner and source of livelihood of the accused, the court would have done well to direct his release on his personal bond. But, the court insisted on solvent sureties and when solvent sureties came forward with affidavits and Tax receipts, the court rejected the affidavits without indicating the reason for doing so. Rejection of affidavits would naturally involve serious consequences to the accused. Compelling him to produce solvency certificate would also involve serious consequences. An order involving such serious consequences should normally be supported by reasons which could be tested by the higher courts. It is regrettable that the learned Magistrate has not cared to indicate any reason for rejecting the affidavits. This was a case where the accused should have been directed to be released on personal bond or at any rate, released after accepting the sureties offered. At any rate, accused could have been released on interim bail, pending enquiry into fitness or sufficiency of the sureties. Accused, could have been spared the indignity of spending a night in prison; Courts entrusted with vast power are expected to exercise the power lawfully reasonably and justly.

There is no particular relief to be given to Revision Petitioner in this Revision Petition. Hence, Crl.M.C. is dismissed.


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