K MAHALINGAM Vs. STATE

JUDGEMENT

(1.) THIS petition has been filed by the petitioners seeking for the quashment of the condition imposed by the learned District Munsif-cum-Judicial Magistrate, Andipatti in Cr.M.P.No.1189 of 2008 in Crime No.111 of 2007 dated 20.03.2008 directing the sureties to be verified by the Probation Officer as illegal.

(2.) THE gist of the allegations made in the petition are as follows: (i) THE petitioners have been charged for the alleged offences punishable under Sections 143, 332, 307 I.P.C. read with Section 3,25(1-B), 27 of Arms Act, 1959, Sections 3,4,5 of Explosives Substances Act, 1908 and Section 17(1)(a) Criminal Law Amendment Act, 1908 in Crime No.111 of 2007 on the file of the respondent police. THE petitioners were arrested on 19.12.2007 and remanded to judicial custody on 20.12.2007. Subsequently, they were detained under the National Security Act as per the order of the District Collector, THEni District. Since the charge sheet has not been filed within the stipulated time of ninety days, the petitioners applied for bail under Section 167(2)(a)(i) Cr.P.C. and the learned Judicial Magistrate, Andipatti had granted bail, on condition to execute a bond for a sum of Rs.5,000/- (Rupees ten thousand only) with two sureties each for a like sum and also to appear before the respondent police on everyday morning by 10.00 a.m. until further orders. (ii) THE learned Magistrate has further directed that the petitioners shall be released only after the verification of the Probation Officer as to the conduct of the persons, who offer themselves as sureties. THE aforesaid condition of verifying the sureties by the Probation Officer is amounting to an enquiry regarding the sufficiency and fitness of the sureties to be conducted by the Magistrate as per Section 441(4) Cr.P.C. This Court recently settled down this matter relying the Hon'ble Apex Court orders by concluding that "no court including a Magistrate has any power to order an enquiry to be held by Probation Officer with reference to the fitness or sufficiency of the sureties. Hence, the direction of the learned Magistrate is against the fundamental rights guaranteed under the Constitution of India. THErefore the said conditions should have been quashed.

(3.) HE would further submit in his argument that the condition to execute a bond for a sum of Rs.5,000/- (Rupees ten thousand only) with two sureties each for a like sum and also to appear before the respondent police on everyday morning by 10.00 a.m. until further orders are in order, but the condition to verify the sureties after obtaining a report from the Probation Officer concerned is quite contrary to the provisions of law and the Judgment of this Court and therefore the said condition should have been quashed and the petitioners be permitted to furnish sureties of their choice to the satisfaction of the said Magistrate as per law.