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2014 DIGILAW 111 (KER)

K. Madhu v. State of Kerala

2014-02-07

K.RAMAKRISHNAN

body2014
Judgment : 1. This is an application filed by the accused No.6 in Crime No.48/2012 of Kasargod Police Station for modifying the conditions Nos.4 and 5 and also modifying the condition to produce two relative sureties imposed as per Annexure-A1 order under Section 482 of Code of Criminal Procedure. 2. The case of the petitioner was that he is the 6th accused in Crime No.48/12 of Kasarod police station and the investigation of the case is not completed. The learned Chief Judicial Magistrate, Kasargod has granted statutory bail to the petitioner under Section 167(2) of Code of Criminal Procedure as per Annexure-A1 order. There, the magistrate imposed conditions that he will have to produce two relative sureties, both the sureties have to produce the original title deed and that has to be kept in court till 313 examination of the accused and the sureties also produce solvency certificate equivalent to 1% of the amount involved in the case. The conditions are harsh and very difficult to comply with and that will amount to denial of bail. So, he has no other option but to file an application before this court to quash those conditions under Section 482 of Code of Criminal Procedure. 3. Heard the Counsel for the petitioner and learned Public Prosecutor. 4. It is an admitted fact that the present petitioner was accused in several cases and this is one of such cases registered against him. It is also an admitted fact that he is in jail for long time in connection with all these cases and the Chief Judicial Magistrate has granted statutory bail to him under Section 167 (2) of Code of Criminal Procedure evidenced by Annexure-A1 order. It is true that while granting bail to accused in such cases, court is entitled to impose conditions. But, that condition should not be of such a nature that could not be complied with. If such conditions imposed are of nature of non-compliance, then that will amount to denial of bail itself. Further, there is no necessity for the retention of title deeds of the properties of the sureties. This has been considered by this court in the decision reported in Asokan V. C.I of Police, Kadakkal Police Station 2010 (1) KHC 1. In that decision, this court has held that direction of the magistrate to produce original title deeds of the sureties itself is unwarranted in law. This has been considered by this court in the decision reported in Asokan V. C.I of Police, Kadakkal Police Station 2010 (1) KHC 1. In that decision, this court has held that direction of the magistrate to produce original title deeds of the sureties itself is unwarranted in law. In the same decision, it has been held that it is mandatory that one of the sureties is a close relative of the accused. So, condition No.4 imposed by the learned magistrate to produce the title deeds of the sureties and retain them in court till the examination of the accused under Section 313 of Code of Criminal Procedure is over is unsustainable in law in view of the dictum mentioned above and the same has to be set aside. 5. Further, in the decision reported in Syamkumar V. State of Kerala and Another (2010 KHC 6262), this court has held that production of solvency certificate may not be insisted in cases where the presence of the accused can be assured through other means. An accused who cannot get sureties with solvency certificate shall not be denied bail on that ground. So, the condition imposed by the court below as condition No.5 that the sureties have to produce solvency certificate for an amount equivalent to 1% of the amount involved in the crime is also unsustainable in law. They only undertake to produce the accused in court when his presence is required and nothing more. So, under the circumstances, conditions Nos.4 & 5 is unsustainable and the same are liable to be set aside. 6. As regards the sureties are concerned, the learned magistrate has directed to produce two sureties who are relatives of the accused. I feel that instead of two relatives insisting one of the sureties be a close relative of the accused will be sufficient and that will meet the purpose. So, condition Nos.4 & 5 imposed by the court below are set aside and condition No.2 is modified restricting the relative surety to 1 instead of 2 as directed by the court below. It is made clear that if the magistrate wants to ascertain the genuineness of the right of the surety in the property, he can verify the title deed and return the same to the surety immediately and he can also insist for the proof of identity of the surety also. It is made clear that if the magistrate wants to ascertain the genuineness of the right of the surety in the property, he can verify the title deed and return the same to the surety immediately and he can also insist for the proof of identity of the surety also. With the above modifications, the petition is disposed of.