VALSON Vs. STATE OF KERALA

JUDGEMENT

(1.) The Petitioner herein, an autorickshaw driver, accused in S. 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 there was nothing illegal in the procedure followed by the learned Magistrate.

(3.) 5. 436 of the Code of Criminal Procedure providues for grant of bail to persons accused of bailable offences. 5. 437 relates to non-bailable offences. Special powers of the High Court and the Sessions Court are dealt with in 5. 439. Sub-s. (1) of S. 440 states that the amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. Sub-so (2) empowers the High Court or the Sessions Court to reduce bail required by a police officer or Magistrate. 5. 441 deals with the bond to be executed by the accused and sureties. Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. Where a condition is imposed, the condition also shall be mentioned in the bond. Sub-s. (4) states that for the purpose of determining whether the sureties are fit or sufficient, the court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the court, as to such sufficiency or fitness. S. 442 requires that as soon as the bond has been executed the person for whose appearance it has been executed shall be released; and when he is in jail, the court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the order shall release him. 5. 443 lays down that if, through mistake, fraud, or otherwise, sufficient sureties have been accepted, or if they afterwards become insufficient, the court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and on his failing so to do, may commit him to jail. The other sections in Chapter XXXIII are consequential provisions.