2009 Supreme(Bom) 679
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A. S. OKA, J.
Ganeshanan Lakshmanan & Anr. - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Writ Petition No.848 of 2009
Decided on : 9th June, 2009.
Advocates appeared:
VISHWAJEET S. KAPSE i/by PRAVEEN L. SINGH and MADHURA U. JOSHI, for Petitioners.
S. R. BORULKAR, Public Prosecutor with H. J. DEDHI, APP for State.
H. V. MEHTA, for C.B.I..
Headnote:Indian Penal Code, 1860 - Sections 120-B, 409, 411, 420, 467, 468 and 471 - Criminal Manual (Mah.) Chapter I, Para 14(2) - Bail with condition to furnish solvency certificate - Validity - Challenge - Held - Solvency certificate is not essential always - Irrespective of amount of surety, it is not necessary for Court to insist for solvency certificate - Impugned order is confirmed with classification that petitioner to furnish one or two sureties to make up amount. - Thus, from sub-paragraph (1) of paragraph 14 of the Criminal Manual it is very clear that irrespective of the fact whether the amount of bail exceeds a sum of Rs. 15,000/- or not the Presiding Officer of the concerned Court is required to hold an enquiry before accepting a surety as solvent. The said sub-paragraph clearly lays down that the basic responsibility of accepting surety as solvent is always that of the Presiding Officer of the Court. Sub-paragraph (2) of paragraph 14 clearly provides that whether the amount of surety exceeds a specified amount or not production of a solvency certificate from the revenue authorities is always not essential and may be insisted upon only in case of doubt and cases involving large sums. Sub-paragraph (3) of the paragraph 14 provides that while holding an enquiry as to whether the surety is solvent, the Court may accept affidavits in proof of the facts contained therein relating to the solvency of the sureties. Thus irrespective of the amount of surety it is always not necessary for the Court to insist upon production of solvency certificate. But the concerned Court has to be satisfied that the surety is solvent. Sub-clause (4) provides that if the bond amount does not exceed Rs. 15,000/- the Court may assess the solvency of surety even upon the basis of his movable property and assets. Thus as a normal rule, the insistence upon possession of immovable property by the sureties can be made only in a case where the surety amount exceeds Rs. 15000/-. Therefore as a matter of routine practice, the Criminal Courts in the State direct production of solvency certificate by surety in cases where bond amounts exceed Rs. 15,000/-. If sub-paragraphs (1), (2) and (3) of paragraph 14 of the Criminal Manual are read with sub-paragraph (4) thereof it becomes clear that there is no rule that in every case where the bond amount exceeds Rs. 15,000/- the production of solvency certificate issued by the revenue authorities in favour of surety is mandatory. Even if the bond amount exceeds Rs. 15,000/- the Court concerned can make an enquiry for assessing the solvency of the surety. The practice adopted by the Courts of insisting upon production of solvency certificates in cases where the bond amount exceeds Rs. 15,000/- is a practice of convenience. As provided in sub-paragraph (4) of paragraph 14 of the Criminal Manual in cases where bond amount exceeds Rs. 15,000/- normally as a rule of prudence while assessing the solvency of surety, possession of immovable property by the sureties is insisted upon. An enquiry for assessing of immovable property in such cases before the Court may take inordinately long time and therefore the Courts insist upon production of solvency certificates by the revenue officers inasmuch as revenue officers have a machinery available for ascertaining whether the surety is possessing the specific immovable property as claimed by him. Moreover the Revenue Officers have a machinery available for ascertaining the valuation of the immovable property held by the surety. If the Court is to embark upon such an enquiry, the procedure may become cumber some as the Court may be required to call upon the surety to furnish valuation report by a Government approved valuer of the immovable property held by him. However the revenue authorities empowered to issue solvency certificate have necessary data available to determine the valuation of the immovable property held by the surety and the revenue authorities do not require production of valuation certificates. The data of valuation in ready reckoner for payment of stamp duty is also available which can be looked into. That is why this rule of convenience of insisting production of solvency certificate where the bond amount exceeds Rs. 15,000/- is being consistently followed by the Courts in the State. It is to be borne in mind that the Court always has a power to make an enquiry itself on the solvency of the surety even when the surety amount exceeds Rs. 15,000/- without insisting upon production of solvency certificate. However it must be stated that the aforesaid practice of insisting for solvency certificate where bail amount exceeds Rs. 15,000/- has a sound basis.
JUDGMENT:- The petitioners are accused nos.7 and 8. The offences against the petitioners are registered with the Economic Offences Wing. Mumbai. They were arrested. The petitioners were charged with sections 120-B, 409.411, 420, 467, 468 and 471 of the Indian Penal Code. The learned Magistrate declined to grant the bail. The petitioners applied before the Sessions Court for grant of bail. The learned Special Judge by order dated 7th February, 2009 granted bail in favour of the petitioners. The petitioners were ordered to be released on bail on executing a P.R. Bond of Rs.50,000/each with solvent surety in the like amount within three weeks. It was directed that in the meanwhile the petitioners shall be released on cash bail of Rs.25,000/- each. Accordingly, cash bail was furnished by the petitioners. The petitioners applied for modification of bail order. By order dated 24th February, 2009, the learned Special Judge declined La grant prayer for reducing the amount of surety to Rs.15,000/-each from Rs.50,000/- each and for permitting ordinary surety instead of solvent surety. The learned Special Judge also rejected the prayer made in the alternative for reducing the amount of surety to Rs.21 ,000/- and for permitting three persons to jointly act as ordinary sureties of Rs,7,000/- each. However, the learned Special Judge extended the time to furnish the solvent surety. Thereafter, the petitioners made another application being Miscellaneous Application No. 498 of 2009 for extension of time and for a direction to the learned Magistrate to accept surety. The said application was partly allowed by order dated 16th March, 2009. The learned Special Judge granted ten days time for furnishing the surety, The learned Judge observed that the petitioner is permitted to furnish one or two sureties. It will be necessary to refer to what is observed by the learned Judge in paragraph 3 of the said order which read thus :-
"3. Considering the fact that the applicants/ accused are enlarged on cash bail and they are unable to furnish solvent surety, they can be permitted to furnish one or two sureties, However, the prayer of directions to the learned Trial Court for accepting surety is not required as the papers are lying in the Trial Court itself. Accordingly, I pass the following order:"
2. Thereafter the petitioners filed surety application on the basis of the order dated 16th March, 2009. However. the Trial Court did not accept the surety. Therefore, the petitioner was again forced to approach the learned Special Judge. On 23rd March, 2009, the learned Special Judge passed following order:-
"Heard, Perused. In MA No.5 13/2009 in BA No.278/2009 this Court has already clarified that the Ld, Magistrate Court has to accept the bail and repeatedly it is observed that the Magistrate is sending the matters to this Court. From this approach of M.M. It seems that he is not taking care as to obey the order of the Court. His way of too much precaution in fact enhance the work of the Court, which nowhere shows any respect of fear of order of this Court. If it is observed hence onward in spite of clarification, then this Court will have to think about taking legal action against the Magistrate. With this observation, the EX.I stands disposed of."
3. The petitioners had to apply for extension of time to furnish surety. On 30th March, 2009 the learned Special Judge extended the time to furnish the surety by eight days. On 31st March, 2009 the petitioner no.2 furnished two sureties before the Court of learned Metropolitan Magistrate, 19th Court. The learned Judge did not accept the same on the ground that they were not solvent sureties, In view of the said order of the learned Magistrate, the petitioners were required to file Miscellaneous Application No.597 of 2009 before the learned Special Judge. The prayer in the said application was for issuing a direction to the learned Metropolitan Magistrate for accepting the ordinary sureties. A contention was rais
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