ASHRAF Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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(1.)IT is very unfortunate that six persons involved in a bailable offence were not bailed out in spite of their offer to give bail with two solvent sureties 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 his 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 arc 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".
(2.)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 S. 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 S. 57 of the police Act. THE action contains only a bailable offence. Under it "whoever contravenes any prohibition made under 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. I am told by the defence counsel that it will take time to obtain solvency certificate. I don't 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/ -.
(3.)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 contritions of those six persons. 'learned Sessions" Judge further said in his order that the magistrate has not complied with S. 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 certificates obtained from a Tahsildar. THOSE six persons have, therefore, filed this petition under S. 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 Judge are liable to be interfered with at least for reiterating the guidelines to be followed in future.
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