Criminal P.C. 1973 - S. 441- Penal Code, 1860 - Ss. 323 & 307 r/w. 34 - Bond of accused and sureties - Cash Security - Solvent Sureties - Seeking cash security from the accused as pre-condition for grant of bail amounts to defeating Article 21 of the Constitution - The procedure of obtaining Solvency Certificate causes procedural difficulties to the sureties, therefore, such condition shall not be insisted - S.441 of Cr.P.C. does not contemplate furnishing of solvent sureties - The whole purpose of seeking solvent sureties or personal bond is to secure the accused before the Court for trial - The conditions imposed shall not be such that they defeat the bail order granted.
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 11th DAY OF SEPTEMBER 2018
BEFOR E THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No .101381 OF 2018
BETWEEN: 1. RABBANI S/O NOORAHMED SAVANUR AGE: 24 YEARS, OCC: CENTRING MAESTRI, R/O: HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD. 2. MAHABOOBSAB S/O NAZIRAHMED SHIGGAON AGE: 24 YEARS, OCC: CENTRING MAESTRI, R/O: HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD. ... PETITIONERS (By Sri. VIDYASHANKAR G DALWAI ADV.) AND: THE STATE OF KARNATAKA BY ITS P.S.I., GOKUL ROAD POLICE STATION, HUBBALLI, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD. ... RESPONDENT (By Sri.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439(1)(b) OF CR.P.C. SEEKING TO ALLOW THE PETITION AND RELAX/MODIFY THE CONDITIONS IN NOS.(ii) AND (iii) OF ORDER DTD.23.04.2018 IN CRL.MISC.NO.171/2018 PASSED BY THE COURT OF THE 5th ADDL. DISTRICT & SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI.
This Petition coming on for Orders, this day the Court made the following:-
O R D E R
Gokul Road Police have charge-sheeted the petitioners in Crime No.148/2017 of their police station for the offences punishable under Sections 323 and 307 read with Section 34 of the Indian Penal Code, 1860. They were arrested and remanded to judicial custody.
2. Petitioners applied for bail before the 5 t h Additional Sessions Court, Dharwad sitting at Hubballi in Criminal Misc. No.171/2018. The said Court vide order dated 23.04.2018 granted bail with certain conditions. By condition No.1, petitioner was required to furnish personal bond of Rs.3,00,000/- and two solvent sureties in the like- sum. B y condition No.2, they were required to furnish security of the property worth Rs.3,00,000/- standing in their names, failing which they were required to furnish cash security of Rs.50,000/-. By condition No.3, petitioners were required to submit the Encumbrance Certificate of the property which they furnish as security for their release.
3. Petitioners filed Criminal Misc. No.277/2018 before the 5th Additional Sessions Court seeking modification of condition Nos.1 to 3 of the bail order dated 23.04.2018. By the order dated 02.07.2018, 5th Additional Sessions Judge partly allowed Criminal Misc. No.277/2018, reduced the cash security from Rs.50,000/- to Rs.25,000/- and directed the petitioners to furnish the security of the property worth Rs.3,00,000/- for their release, in the alternative to furnish cash security of Rs.25,000/-. For furnishing Encumbrance Certificate of property, the Sessions Judge granted two months time. The petitioners seek modification of those conditions on the ground that they are untenable and act oppressively against them.
4. The Hon'ble Supreme Court in the judgment in Motiram and others Vs. State of Madhya Pradesh, AIR 1978 SC 1594, held that seeking cash security from the accused as pre- condition for grant of bail amounts to defeating Article 21 of the Constitution. Paragraphs 29 & 30 of the said judgment reads as follows:
"29. If sureties are obligatory even for juveniles, females and sickly accused while they can be dispensed with, after being found guilty if during trial when the presence to instruct lawyers is more necessary, an accused must buy release only with sureties while at the appellate level, suretyship is expendable, there is unreasonable restriction on personal liberty with discrimination writ on the provisions. The hornet's nest of Part III need not be provoked if we read 'bail' to mean that it popularly dose, and lexically and in American Jurisprudence is stated to mean, viz., a generic expression used to describe judicial release from custodia juris. Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigent's rights, we hold that bail covers both-release on one's own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables.
30. Even so, poor men - Indians are, in monetary terms, indigents - young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances - put whatever reasonable conditions you may."
5. This Court in V. Gopikrishna Vs. State of Karnataka, Criminal Petition No.4681/2016, disposed off on 28.07.2016 held that the procedure of obtaining Solvency Certificate causes procedural difficulties to the sureties, therefore, such condition shall not be insisted.
6. Section 441 of the Code of Criminal Procedure, 1973 does not contemplate furnishing of solvent sureties. The whole purpose of seeking solvent sureties or personal bond is to secure the accused before the Court for trial. The conditions imposed shall not be such that they defeat the bail order granted.
7. Having regard to the aforesaid judgments and the facts of the case, the conditions with regard to cash security and solvent sureties need to be modified. Therefore, the petition is allowed.
8. The conditions with regard to furnishing of cash security of Rs.25,000/- and furnishing property worth Rs.3,00,000/- standing in the name of the accused with nil Encumbrance Certificate of the Tahasildar or Municipality to that effect or in the alternative seeking cash security of Rs.25,000/- are hereby substituted as below:
"The petitioners shall be released on bail subject to the condition that they shall execute personal bond in sum of Rs.50,000/- (Rupees Fifty Thousand only) and furnish two sureties in the like-sum to the satisfaction of the jurisdictional court."
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