Bail Conditions that Sureties shall be Natives & Provide Shelter to Accused within the Jurisdiction is illegal [CASE LAW]

Criminal P.C. 1973 - Ss. 437 & 482 – Magistrate Court’s direction that the sureties shall be native and they shall provide a shelter to the accused within the jurisdiction of the Court till the completion of the trial is without jurisdiction and it is illegal. It is liable to be set aside.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

MONDAY ,THE 22ND DAY OF OCTOBER 2018 / 30TH ASWINA, 1940

Crl.MC.No. 6970 of 2018

AGAINST THE ORDER IN CRMP 3169/2018 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM DATED 11-10-2018 CRIME NO. 1185/2017 OF Ernakulam North Police Station, Ernakulam

PETITIONER/2ND ACCUSED :

SUBHO ADHIKARI AGED 34 YEARS S/O.AMAL ADHIKARI, 39A, MOTILAL BASAK, BHOOBAGAN, KOLKATTA.

BY ADV. SRI.THOMAS J.ANAKKALLUNKAL

RESPONDENT/STATE & COMPLAINANT :

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.

BY SRI.ALEX.M.THOMBRA, SR PUBLIC PROSECUTOR

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O R D E R

Petitioner is the accused in Crime No. 1185 of 2017 of Ernakulam Town North Police Station which was re-registered as Crime No.266/CR/OCWII/EKM/2017 of CBCID OCWII registered for the offences under sections 120B, 379, 420, 468 and 471 IPC and section 66(C)(D) of the IT Act. He was granted bail by the learned Magistrate subject to certain conditions. Conditions 1 to 3 as follows :

1. He shall execute bond for Rs. 50,000/- each with two solvent sureties each for like sum. Sureties shall be natives in Kerala and shall produce their title deeds in court. They must file affidavit showing details as to the acquaintance with the accused and how they are acquainted/related to the accused.

2. Since the accused is reported as native of West Bengal, sureties shall provide shelter to the accused/petitioner in Ernakulam till completion of the trial of the case to secure his presence during trial and furnish details of such residence.

3. Petitioner shall not leave the limits of Ernakulam Town North Police Station without prior permission from this court.

These conditions are sought to be set aside or modified.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

3. The learned Magistrate has directed that the sureties of the petitioner shall be Keralites and they shall produce their title deeds. This is illegal. The court cannot make a distinction between Keralites and people of other states. The direction that the sureties shall produce their title deeds cannot be said to be unreasonable. If the learned Magistrate is satisfied that the sureties have properties, their title deeds shall be returned to them. Coming to the second condition, the direction of the learned Magistrate to the sureties that they shall provide a shelter to the accused in Ernakulam till the completion of the trial is without jurisdiction and it is illegal. It is liable to be set aside. The third condition is that the petitioner shall not leave the limits of Ernakulam Town North Police station without prior permission of the learned Magistrate. The petitioner has come to Kerala from West Bengal in search of a job. It is submitted that the direction will disable to him from doing any work outside the limits of the Ernakulam Town North Police Station.

Having regard to this fact, I am inclined to direct that it is sufficient that the petitioner appears before the investigating officer every Friday between 4 and 5 P.M till the final report is filed or for or six months, whichever is earlier.

In the result, this Crl.M.C is allowed. Condition number 2 is set aside. Condition number 1 is modified as follows :- The petitioner shall a execute bond for Rs.50,000/- with two solvent sureties each for like sum, the sureties shall produce their title deeds for verification. In the alternative the petitioner may deposit Rs.75,000/- (Rupees Seventy five thousand only) as suggested by the learned Counsel. If the petitioner deposits the amount, he need not produce any sureties, but he shall execute a bond for Rs.50,000/-. In case of breach, he will be liable to pay the amount of Rs.50,000/- in addition to the amount of Rs.75,000/- mentioned above. Condition 3 is modified as follows : The petitioner shall not leave the Ernakulam District and shall appear before the investigating officer between 4 and 5 P.M every Friday till the final report is filed or for six months whichever is earlier.