Madras High Court - Sagayam @ Devasagayam vs State on 24 April, 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.4.2017
CORAM THE HONOURABLE DR.JUSTICE P.DEVADASS
Crl.M.P.No.3888 of 2017 in Crl.O.P.No.2891 of 2017
Sagayam @ Devasagayam ... Petitioner/A-2
. Vs ..
State rep. by The Inspector of Police, G-7 Chetpet Police Station, Chennai. ... ....Respondent/Complainant
Extract of relevant paras
57. In Motiram (supra) and in Raghubir Singh (supra) it was held that the bail condition should not be imposed in such a way that a rich man can go out of the jail on bail while a man who has no money, no property, who is unable to produce such surety shall suffer in jail.
58. Actually, our bail system is not based on any cash system. (See Motiram (supra), Raghubir Singh & Others (supra), Navaneetha Krishnan (supra) and Sundar @ Ashok (supra).
59. From the above, it is very clear that a Court cannot demand production of property documents from the accused, surety. Nowhere in Section 436 or 437 or 439 or 438 Cr.P.C. or in Form No.45 appended to Schedule II to the Code of Criminal Procedure, 1973, production of property document, title deeds, etc. either by surety or by the accused has been contemplated.
60. So a Magistrate or a Sessions Judge or any Court, demanding production of property documents or R.C. book or any other document to show proof of property either movable or immovable with respect to the bail bond or surety bond amount is against law. It is against Article 21 of Constitution of India. It is against the dictum of the Hon'ble Supreme Court judgment laid down in Maneka Gandhi vs. Union of India (supra).
61. The Courts demanding production of V.A.O. certificate, Residence certificate, Solvency Certificate or Tahsildar Certificate are not mentioned in the Code of Criminal Procedure. These are all creations and inventions of certain Courts. It is clear that these are all not out of any judicial thinking. It is out of an useless thinking curbing the liberty of the individual.
62. Some Courts insists that the surety should be a Government servant or a public servant or a person permanently employed in a reputed concern. This is not at all mentioned in the Code of Criminal Procedure. These are all inventions not by the Code but by some courts. It cannot be said that all Government servants, public servants are Buddas. There are many Government servants who are cheats. In many cases under Section 420 I.P.C., many Government servants are figuring as accused.
63. There are many private individuals having sterling qualities. Mahatma Gandhi is not a Government servant. But he is Father of our Nation. Yet, as per the present practice being adopted by certain criminal Courts, even Mahatma Gandhi cannot be accepted as a surety. Simply because a person is poor, who has no property, no money, no job, it cannot be said that he is disqualified to stand as a surety.
64. Chapter 33 of the Code does not say that the surety should be a member of the family or a blood relative. Court cannot insist that the sureties should be local surety. Suppose if the accused belongs to a different district, different State or even a foreigner or the accused is a business man or working here such as Nepalies, Biharies, etc. who will not have local sureties, their relatives are also in Bihar etc., it will be difficult for them to secure local sureties.
65. In Motiram (supra), the Hon'ble Supreme Court stated that India is a Bharat, any person, from anywhere in India can stand as surety.
66. As per section 441(4) of Cr.P.C. a surety should be a fit person. Who is a fit person has not been defined or explained anywhere in the Code. Generally, a surety must be a genuine person. He should not be a bogus person. A surety comes to the Court and gives undertaking to the Court that he will ensure the appearance of the accused. If the accused fails to appear before the Court, the surety bond executed by the surety will be forfeited.
67. Court can ascertain the genuineness of the sureties. A surety should have a genuine address. He may be asked to produce residential proof. He should not be a vagabond. He should establish his identity. A poor man can be a voter. Likewise, a poor man can be a surety. A surety can be a person without having own house. He can be a tenant. Even a person living in a platform, living in a slum having an acceptable address proof can also stand as a surety.
68. It cannot be denied that a bogus person should not be accepted as a surety. A person who is offering surety must have acceptable residential proof. He may be a tenant, licensee. A beggar can also stand as surety provided he should have some acceptable residential proof.
69. Sometimes, one person may come forward to stand as surety for more than one accused. For example, if two sons or two brothers stand as sureties to an accused, his father, brother, mother, sister etc. may come forward to stand as surety. In such circumstances, question may arise whether the father can chose any one of his son and stand as surety and exclude his other son.
70. In this connection, Section 441-A Cr.P.C. contains guidance. It runs as under:
''Declaration by sureties- Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.'' [emphasis supplied by me]
71. This court and other Courts while granting bail, directs the accused to execute bail bond for Rs.5000/-, Rs.10,000/- Rs.15,000/-, Rs.20,000/- etc. and also produce sureties who should also execute a bond for similar amount. In view of the present value of the properties, it is very difficult to get property document for such value.
72. When superior Courts grants bail directs the accused to execute bail bond by himself as well as by the sureties. Unless otherwise stated, in the bail or anticipatory bail order, as the case may be, 'bond' means personal bond. In such circumstances, the Courts directing the sureties to produce property documents is beyond the scope of the bail order of the superior court.
73. Court should be satisfied as to the genuineness, identity of the surety and his residential address. It is equally applies to the accused. For this purpose, the Court can accept copy of anyone of the following documents after verification.
1 Passport 2 Ration Card 3 PAN card 4 Driving license 5 Voter's ID 6 Aadhaar Card 7 Photo ID issued by a recognised Educational Institution 8 Photo credit card 9 Kissan Photo Passbook 10 Pensioner's Photo card 11 Freedom fighter photo card 12 Identity Certificate with photo issued by a Gazetted officer or Tahsildar 13 Address card with photo issued by the Postal Department 14 Disability ID card or handicapped medical certificate issued by the Government
15. NREGS Job Card
16. CGHS/ECHS/State Government/ESIC Medical Card
17. Marriage Certificate issued by the Government 18 Post Office Statement or Passbook
19. Water Bill 20 Electricity Bill 21 Property Tax Receipt 22 Landline Telephone Bill 23 Credit Card Statement 24 Income-tax assessment order 25 Arms License
26. Certificate of Address issued by the head, Village Panchayat or an equivalent authority
27. Registered Lease/Sale/Rent Agreement
28. Caste and Domicile Certificate that has photo issued by the State Government
29. Gas Connection Bill 30 Insurance Policy
74 From the above analysis, we come to the conclusion that when the accused executes bail bond, when the surety executes surety bond, Court cannot insist production of property documents, surety need not be a Government servant or a blood relative or a local surety.
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