IMPORTANT POINT
The rejection of sureties based on potential influence without concrete evidence was found to be without jurisdiction, and the court exercised powers under Section 482 Cr.P.C. to set aside the impugned order.

JUDGMENT

1. This is an application filed under Section 397 read with Section 482 of the Code of Criminal Procedure primarily directed against an order dated 19.05.2022 passed by the learned Special Judge, (POCSO), Shillong in Special (POCSO) Case No. 66 of 2020.

2. Heard Mr. R. Choudhury, learned counsel for the petitioner who has submitted that the petitioner herein is the accused in the said Special (POCSO) Case No. 66 of 2020.

3. The petitioner was granted default bail by the Court and in this regard, as part of the bail conditions, he has produced two sureties who has stood as bailors to ensure his attendance before the Court. The petitioner has then filed a petition before the Court with a prayer to produce fresh sureties as one of the sureties has filed an application before the Court with a prayer to discharge her from such liability and another surety could not be contacted. The petitioner has then prayed before the Court to allow fresh sureties who are his wife and his brother respectively.

4. The learned Court to determine the liability and competency as well as solvency of the sureties had made certain queries and not being satisfied with the answers given has, in particular come to the conclusion that since one of the sureties is the petitioner's wife who happens to be the sister of the survivor, therefore the element of influence of witnesses is very apparent and on this ground, the sureties were not accepted, the previous bail bonds are forfeited and the bail granted to the petitioner was accordingly cancelled. He is therefore sent to judicial custody, submits Mr. Choudhury.

5. The learned counsel has also submitted that on another occasion, the mother of the petitioner had again preferred an application before the Trial Court seeking the same relief, that is, for consideration of the fresh bail bonds on behalf of the new set of sureties as aforesaid. The Trial Court on consideration of the prayer vide order dated 19.05.2022 has rejected the prayer and has held that since the accused has already influenced two important witnesses for the prosecution, the situation cannot be allowed to be continued as it will result in miscarriage of justice and accordingly, the released of the accused/petitioner was not considered until the evidence of the important witnesses have been recorded. This opinion is based on surmises and conjecture which has resulted in a wrong finding and as such, the same cannot be accepted.

6. It is therefore prayed that the impugned order may be set aside and the learned Special (POCSO) Court may be directed to accept the fresh sureties and consequently, the petitioner may be released on previous bail.

7. Mr. H. Kharmih, learned Addl. PP on behalf of the State respondent has submitted that the facts recorded by the learned Special Judge, (POCSO) Shillong to the extent that the wife of the petitioner is brought forward as one of the sureties and she is also the eldest sister of the survivor and that she is also one of the prosecution witnesses, the presumption that she may be influenced by the petitioner cannot be ruled out. In this regard, the impugned order cannot be faulted and the learned Special Judge has passed a reasoned order, the same may not be disturbed by this Court.

8. On consideration of the submission made by the parties, what can be understood is that the petitioner in order to be released on previous bail, which bail was cancelled solely on the ground that the bonafide of the new sureties cannot be relied upon by the Court since they are part of the prosecution witnesses which, by implication suggests that the petitioner has won them over, therefore they are found unsuitable as sureties.

9. The law on bail and bonds is found in Chapter XXXIII of the Code of Criminal Procedure, 1973, under the chapter, Section 441 provides for bond of accused and sureties and sub-Section 1 of the said Section 441 provides that a person before he is released on bail on his own bond for a sum of money as the p