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2010 DIGILAW 1953 (MAD)

Sheik Abdullah v. Miskin

2010-04-23

M.M.SUNDRESH

body2010
Judgment :- The petitioner stood as a surety for the first respondent herein/accused in C.C.No.748 of 2002 on the file of the learned Judicial Magistrate No.IV, Madurai. The petitioner is the son of the first respondent herein, who is the accused in C.C.No.748 of 2002. A case has been registered against the first respondent for the alleged offences punishable under Sections 39(1) and 44(1)(c) of the Indian Electricity Act. 2. On an earlier occasion, while granting anticipatory bail to the first respondent herein in Crl.M.P.No.4388 of 2001, the learned first Additional District Judge, Madurai had imposed a condition that the accused should deposit 1/3rd amount of Rs.3,69,003/-. Challenging the same, the first respondent being the accused has approached this Court and this Court in Crl.O.P.No.23588 of 2001 was pleaded to modify the condition with a direction to the first respondent to furnish the deed of immovable property to the value of 1/3rd of the amount of Rs.3,69,003/-. 3. Thereafter, the petitioner stood as a surety and deposited his title deed and also filed an affidavit to that effect regarding the value of the property. Since the petitioner has decided to sell the said property, an application was filed by the petitioner before the learned Judicial Magistrate No.IV, Madurai in Cr.M.P.No.2401 of 2009 seeking to return the title deed produced by him before the Court, in pursuant to the order passed by the Court in Crl.O.P.No.23588 of 2001. The said petition was dismissed by the trial Court and hence, the petitioner has filed the present petition. 4. A reading of Section 444 of the Code of Criminal Procedure, 1973, would clearly show that a surety given already can be discharged. A clear cut procedure has been contemplated under Section 444 of the Code of Criminal Procedure, 1973, which is extracted here under:- "Discharge of sureties.-(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants. (2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him. (2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him. (3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail." 5. Hence, a perusal of the said provision would clearly show that when an application is filed seeking to discharge the bond, the Magistrate concerned shall issue his warrant of arrest to the concerned accused directing him to be present before him. Thereafter, on the appearance of such an accused, in pursuant to the warrant to whom an order of bail was granted earlier, the Magistrate shall direct the bond to be discharged. While discharging the bond, the Magistrate shall call upon such person to find out other sufficient sureties. In the event of the accused person unable to find out any surety, then the Magistrate can commit him to jail. Therefore, instead of dismissing application, the learned Judicial Magistrate No.IV, Madurai ought to have followed the procedure contemplated under Section 444 of the Code of Criminal Procedure, 1973 by seeking production of the accused in whose favour surety was given. Thereafter, the Magistrate will have to direct the said accused, viz., the first respondent herein to produce some other sufficient surety and if he fails to do so, the first respondent can be committed to jail. 6. Hence, in view of the above said clear position and on the failure of the learned Judicial Magistrate No.IV, Madurai to comply with the same, the order dated 03.09.2009 passed in Cr.M.P.No.2401 of 2009 in C.C.No.748 of 2002 on the file of the learned Judicial Magistrate No.IV, Madurai is hereby set aside and the learned Judicial Magistrate No.IV, Madurai is directed to take up the petition filed in Cr.M.P.No.2401 of 2009 in C.C.No.748 of 2002 afresh and follow the procedure contemplated under Section 444 of the Code of Criminal Procedure, 1973. The learned Judicial Magistrate No.IV, Madurai is directed to dispose of the said petition within a period of six weeks from the date of receipt of a copy of this order. 7. This Criminal Original Petition is ordered accordingly.