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2022 DIGILAW 206 (MEG)

Chandan Saikia v. State of Meghalaya

2022-08-03

W.DIENGDOH

body2022
JUDGMENT 1. This is an application filed under Section 397 read with Section 482 of the Code of Criminal Procedure primarily directed against an order dated 19.05.2022 passed by the learned Special Judge, (POCSO), Shillong in Special (POCSO) Case No. 66 of 2020. 2. Heard Mr. R. Choudhury, learned counsel for the petitioner who has submitted that the petitioner herein is the accused in the said Special (POCSO) Case No. 66 of 2020. 3. The petitioner was granted default bail by the Court and in this regard, as part of the bail conditions, he has produced two sureties who has stood as bailors to ensure his attendance before the Court. The petitioner has then filed a petition before the Court with a prayer to produce fresh sureties as one of the sureties has filed an application before the Court with a prayer to discharge her from such liability and another surety could not be contacted. The petitioner has then prayed before the Court to allow fresh sureties who are his wife and his brother respectively. 4. The learned Court to determine the liability and competency as well as solvency of the sureties had made certain queries and not being satisfied with the answers given has, in particular come to the conclusion that since one of the sureties is the petitioner's wife who happens to be the sister of the survivor, therefore the element of influence of witnesses is very apparent and on this ground, the sureties were not accepted, the previous bail bonds are forfeited and the bail granted to the petitioner was accordingly cancelled. He is therefore sent to judicial custody, submits Mr. Choudhury. 5. The learned counsel has also submitted that on another occasion, the mother of the petitioner had again preferred an application before the Trial Court seeking the same relief, that is, for consideration of the fresh bail bonds on behalf of the new set of sureties as aforesaid. The Trial Court on consideration of the prayer vide order dated 19.05.2022 has rejected the prayer and has held that since the accused has already influenced two important witnesses for the prosecution, the situation cannot be allowed to be continued as it will result in miscarriage of justice and accordingly, the released of the accused/petitioner was not considered until the evidence of the important witnesses have been recorded. This opinion is based on surmises and conjecture which has resulted in a wrong finding and as such, the same cannot be accepted. 6. It is therefore prayed that the impugned order may be set aside and the learned Special (POCSO) Court may be directed to accept the fresh sureties and consequently, the petitioner may be released on previous bail. 7. Mr. H. Kharmih, learned Addl. PP on behalf of the State respondent has submitted that the facts recorded by the learned Special Judge, (POCSO) Shillong to the extent that the wife of the petitioner is brought forward as one of the sureties and she is also the eldest sister of the survivor and that she is also one of the prosecution witnesses, the presumption that she may be influenced by the petitioner cannot be ruled out. In this regard, the impugned order cannot be faulted and the learned Special Judge has passed a reasoned order, the same may not be disturbed by this Court. 8. On consideration of the submission made by the parties, what can be understood is that the petitioner in order to be released on previous bail, which bail was cancelled solely on the ground that the bonafide of the new sureties cannot be relied upon by the Court since they are part of the prosecution witnesses which, by implication suggests that the petitioner has won them over, therefore they are found unsuitable as sureties. 9. The law on bail and bonds is found in Chapter XXXIII of the Code of Criminal Procedure, 1973, under the chapter, Section 441 provides for bond of accused and sureties and sub-Section 1 of the said Section 441 provides that a person before he is released on bail on his own bond for a sum of money as the police officer or the court may think sufficient, and the bond shall be executed by such person and by one or more sufficient sureties primarily to ensure that such person attends the court or as directed by the police officer any such place designated. This would imply that the person so released can execute a personal bond and additionally, can also produce sufficient sureties on his behalf. 10. This would imply that the person so released can execute a personal bond and additionally, can also produce sufficient sureties on his behalf. 10. Section 447 is a provision which lays down the procedure in case of insolvency or death of surety or when a bond is forfeited under the said provision, it is provided that when any surety to a bond becomes insolvent or dies or when the bond is forfeited, the court may order the person, meaning the accused to furnish fresh security in accordance with the directions of the original order. In common parlance, what can be understood is that on the death, forfeiture or discharge of a surety, the court can direct the accused to provide fresh sureties and only on failure to do so, will the court proceed as if there has been a default to comply with the original order or the previous bail. 11. In the case in hand, admittedly, the original sureties have got themselves discharged from their bonds, one on the ground that she is suffering and another on the ground that he could not be contacted, prompting the petitioner to submit a list of fresh surety one of whom is his wife and the other his brother. Prima facie, no disqualification could be found against the fresh sureties as far as solvency is concerned, however the Trial Court has gone on a different direction and consideration and has rejected the fresh sureties on the ground that they have been influenced by the petitioner. 12. There is nothing on record to prove that the petitioner has influenced the sureties, particularly his wife who is said to be one of the prosecution witnesses. Nothing is noted against the conduct and character of the said surety and the reconsideration of bail could at best be confined only to the issue of tampering of witnesses and evidence. However, as pointed out there is no evidence or report in this regard especially from the Investigating Officer and as such, the learned Trial Court could not have come to any conclusion without any concrete evidence. The rejection of the surety on this ground cannot be sustained. 13. Finding no fault with the antecedent of the solvency of the sureties mentioned above, this Court finds that the impugned order has been passed without jurisdiction. 14. The rejection of the surety on this ground cannot be sustained. 13. Finding no fault with the antecedent of the solvency of the sureties mentioned above, this Court finds that the impugned order has been passed without jurisdiction. 14. Even by exercising powers under Section 482 Cr.P.C., this Court for ends of justice on the presumption that the petitioner/accused shall not abscond and that he shall maintain his appearance before the Court as and when required would be inclined to set aside the impugned order and to allow the petitioner to go on previous bail. 15. In view of the above, this petition is hereby allowed. The impugned order dated 19.05.2022 (supra) is hereby set aside and quashed. The learned Trial Court on presentation and consideration of the relevant bail bonds produced shall allow the same and thereby cause released of the petitioner/accused on bail with the previous conditions sustained. 16. Petition disposed of. No costs.