1984 2 Crimes(HC) 503
KERALA HIGH COURT
U. L. Bhat, J,
State of Kerala -Respondent
Crl. M. C. No. 92 of 1984
Decided on 28-3-1984
Where from facts and circumstances of a case bail jumping see one unlikely by an accused who is released on personal bond it would be arbitrary to insist on sureties. Even where sureties are insisted upon, ordinarily, due weight, must be given to the affidavits produced by the sureties and insistence on an enquiry or solvency certificate should be the exception rather than the rule.
Criminal Procedure Code 1973, Sections 436 and 440-Motor Vehicles Act 1939-Section 86(1)-Petitioner charged for offence under Section 86(1)-Motor Vehicles Act-Application for bail accepted subject to execution of bond with 2 solvent sureties-Two sureties produced owning landed property produced, however their affidavits undertaking to stand surety and their tax receipts did not satisfy the Magistrate and solvency certificate insisted upon-Petitioner in the meanwhile remanded to custody-However solvency certificates were produced the next day and the petitioner was released on bail-Petitioner has filed present petition to protest against the night he had to spend in prison—
Whether in the facts and circumstances of the case was the Magistrate justified in remanding the accused to custody in the absence of a solvency certificate? (No) (Paras 10 and 11)
However as no particular relief is to be given to the revision petitioner, the petition is dismissed. (Para 12)
Act Referred :CRIMINAL PROCEDURE CODE : S.440, S.436MOTOR VEHICLES ACT : S.86(1)Cases Referred:
N. P. Samuel and P. V. Chandra Mohan, Advocates- For the Petitioner. Public Prosecutor-For the Respondent.
JUDGMENT U. L. Bhat, J.-The Petitioner herein, an autorickshaw driver, accused in S.T. N@. 1403/83 on the file of the Judicial Magistrate of the Second Class, Triehur, 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 20.12-83 in response to summons and offered bail. Bail was ordered on condition that he executes a bond for 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. 10,000/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 staling: "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.
2. 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 right vesting in the accused. Learned Public Prosecutor submitted that ther
Click Here to Read the rest of this document with a free account to LawCanvas