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2011 DIGILAW 117 (CHH)

Wu Chunnan v. State of C. G.

2011-03-28

T.P.SHARMA

body2011
ORDER T.P. Sharma, J. 1. By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code'), the Petitioners have challenged legality and propriety of the order dated 21-2-2011 passed by the 2nd Additional Sessions Judge (FTC), Korba in Criminal Revision No. 5/2011, affirming the order dated 23-12-2010 passed by the Judicial Magistrate First Class, Korba, whereby learned Judicial Magistrate First Class has refused to accept deposit instead of recognizance in accordance with Section 445 of the Code. 2. I have heard learned Counsel for the parties, perused the order impugned, copies of other documents, applications and order sheets. 3. Vide order dated 30-4-2010 passed by the Supreme Court in Criminal Miscellaneous Petition No. 6369/2010 the Supreme Court has ordered the Petitioners to be released on bail subject to the terms and conditions to be imposed by the trial Court in its discretion and also imposed a condition directing surrender of passports of the Petitioners. In compliance of the order passed by the Supreme Court, the trial Court has passed order that if the Petitioners furnish personal bonds of Rs. 1 lakh each with two local solvent sureties of Rs. 50,000/- each, they be released on bail. Thereafter, the Petitioners have applied for deposit instead of recognizance in terms of Section 445 of the Code, same has been dismissed by the trial Court vide order dated 23-12-2010 which was challenged before the revisional Court and same was also dismissed by the revisional Court vide the order impugned. Both the Courts below have held that in accordance with Section 445 of the Code only deposit is permitted instead of personal bond and not of surety bond. 4. Learned Counsel for the Petitioners submits that all the Petitioners are residents of China country, they are not in a position to procure and produce solvent sureties from this country and, therefore, instead of recognizance they are ready to deposit money of bail bonds, but both the Courts below have illegally interpreted the provisions of Section 445 of the Code and have dismissed the petitions. 5. On the other hand, learned State counsel opposes the petition and submits that the trial Court has exercised its discretion for releasing the Petitioners in compliance of the order of the Supreme Court and has chosen to put condition of personal bail bonds with two sureties. 6. 5. On the other hand, learned State counsel opposes the petition and submits that the trial Court has exercised its discretion for releasing the Petitioners in compliance of the order of the Supreme Court and has chosen to put condition of personal bail bonds with two sureties. 6. The Supreme Court has passed following order relating to bail of the Petitioners: Petitioners are directed to be released on bail subject to the terms and conditions to be imposed by the trial court in its discretion. The trial court, however, shall apart from the other conditions, impose the condition directing the Petitioners to surrender their respective passports and upon such surrender the passports shall remain with the trial court till the disposal of the cases. We, however, record the undertaking given by the Consulate General of the People's Republic of China at Kolkata, the operative portion of which reads as under: The Consulate of the People's Republic of China in Kolkata, hereby undertakes and assures to the Hon'ble High Court that we will ensure the availability of the above-mentioned Chinese citizens for the duration of the trial and will also ensure that they will co-operate with investigating agencies in India. 7. The Supreme Court has directed release of the Petitioners on bail subject to the terms and conditions to be imposed by the trial court in its discretion. In compliance of the order of the Supreme Court, the trial Court has exercised its discretion and has imposed condition of solvent sureties for releasing the Petitioners and giving them into the custody of persons of the society. It is not obligatory that surety must be having sufficient property. Normal procedure for releasing a person on bail from the custody is to release the person on furnishing personal bond and solvent surety to the satisfaction of the Court concerned. Provisions under Section 445 of the Code is an exception to the normal procedure. 8. Virtually, by praying for such relief, the Petitioners have claimed to be tried by a particular procedure instead of normal procedure. While considering the question of trial of accused by a particular procedure or court, this Court in Criminal Misc. Petition No. 98/2011 (V. Narayanasamy v. Shri Ajay Chandrakar and Anr.) vide order dated 23-3-2011, by applying the dictum of the Supreme Court in the matters of Rao Shiv Bahadur Singh and Anr. While considering the question of trial of accused by a particular procedure or court, this Court in Criminal Misc. Petition No. 98/2011 (V. Narayanasamy v. Shri Ajay Chandrakar and Anr.) vide order dated 23-3-2011, by applying the dictum of the Supreme Court in the matters of Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya Pradesh AIR 1953 SC 394 and Union of India v. Sukumar Pyne AIR 1966 SC 1206 has held as follows: The accused has no vested right to be tried by a particular Court or by a particular procedure except in so far as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved. 9. In the present case, while exercising discretion for releasing the Petitioners on bail and refusing deposit instead of recognizance, the Courts below have not committed any illegality. The accused has no vested right to be tried by a particular Court or by a particular procedure. 10. For the foregoing reasons, I do not find any substance in the petition. The petition is, therefore, liable to be dismissed and it is hereby dismissed, in limine. 11. Consequently, I.A. No. 1 stands disposed of.