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Madhya Pradesh High Court · body

2010 DIGILAW 951 (MP)

Laxmi Sahu v. State of M. P.

2010-09-17

R.C.MISHRA

body2010
ORDER R.C. Mishra, J. 1. Heard on IA No. 15314/10 for modification in the order dated 2/8/2010 suspending sentences awarded to the Appellant for the offences under Section 376 and 506 of the IPC. 2. According to learned Counsel for the Appellant, a clarification in the order-dated 2/8/2010 is required in view of the fact that learned trial Judge, while declining to accept the bail bond furnished by Jiyalal, has referred the question of his solvency to Tahsildar despite the fact that he had also produced Bhu-Adhikar and Rin Pustika issued by the Competent Revenue Authority to satisfy the Court. 3. However, no modification in the order, which is couched in the usual form, would be necessary as the relevant guidelines are already available in Rule 382 and 383 of the Rules and Orders (Criminal) and the Note appended thereto. For a ready reference, these Rules may be reproduced as under: 382. Whenever the solvency of a surety is to be verified a statement of his assets and liabilities declared to be true and complete to the best of his knowledge and belief should be obtained from him and verified before he is accepted. Only realizable assets should be taken into consideration. 383. The responsibility for accepting a surety as solvent for the required amount is primarily that of the presiding officer who has demanded the security either of his own accord or on being directed to do so by a superior court, and in ordinary cases he should discharge it himself by making such summary enquiry as in the circumstances of the case he may think fit. When the case is important or the amount of security demanded is large the presiding officer may ask the nazir or the naib-nazir to enquire into the solvency of the surety and submit a report or ask the surety to produce a certificate of solvency from the tahsildar. Note-It is nowhere laid down that the production of a solvency certificate is essential and in most cases a summary enquiry by the presiding officer or nazir or naib-nazir should sufficient. This should not, however, be considered as in anyway limiting the right of a presiding officer to demand a solvency certificate in case of doubt or involving large sums. Note-It is nowhere laid down that the production of a solvency certificate is essential and in most cases a summary enquiry by the presiding officer or nazir or naib-nazir should sufficient. This should not, however, be considered as in anyway limiting the right of a presiding officer to demand a solvency certificate in case of doubt or involving large sums. In every case it is the duty of the presiding officer to regulate this procedure in the manner that will cause least inconvenience to parties consistent to parties consistent with efficient control. 4. Further, the provision of Sub-section (4) of Section of the Code of Criminal Procedure, which is later in point of time, also does not confer any power on a Judicial officer to direct inquiry by a Revenue Officer. It reads 441. Bond of accused and sureties. (1)… (2)… (3)… (4) 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. 5. Accordingly, if the learned Judge was not satisfied with the solvency of the Surety, he could have held an inquiry himself or cause an inquiry to be made by a judicial Magistrate as to sufficiency or fitness of the surety. 6. Thus, viewed from any angle, the order directing inquiry into solvency of the surety by the Tahsildar does not have any legal sanction. 7. With these observations, the I.A. stands dismissed. 8. Registrar General is directed to place the matter before Hon'ble the Chief Justice for appropriate action. 9. C.C. as per rules.