ALEYAMMA MATHEW v. STATE OF KERALA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941** ## **Crl.MC.No.593 OF 2020(D)** **ST Nos.650/2019, ST No.651/19, ST No.652/19, ST No.653/19, ST No.995/19, ST No.333/19, ST No.363/19 and ST No.188/19 OF CHIEF JUDICIAL MAGISTRATE COURT PATHANAMTHITTA** ## **PETITIONER/3RD ACCUSED:** **ALEYAMMA MATHEW, AGED 57 YEARS W/O. T.V. MATHEW, RESIDING AT THEKKETHIL HOUSE, VALLAMKULAM P.O., THIRUVALLA, FORMERLY WORKING AS REGIONAL MANAGER RECOVER, M/S. KERALA HOUSING FINANCE LIMITED, BRANCH OFFICE AT PATHANAMTHITTA, OPPOSITE KSRTC BUS STAND, PATHANAMTHITTA.** **BY ADVS. SRI.P.HARIDAS SRI.CHERIAN GEE VARGHESE SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - **2 DISTRICT POLICE CHIEF, PATHANAMTHITTA, PIN-689645.** - **3 STATION HOUSE OFFICER, POLICE STATION, PATHANAMTHITTA, PIN-689645.** **SRI C K PRASAD-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.593/2020 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.593 of 2020 ---------------------------------------------Dated this the 28[th] day of January, 2020 ## **O R D E R** The best guarantee of presence in court is the reach of the law, not the money tag (See **Moti Ram v. State of M.P : AIR 1978 SC 1594** ). 2. The petitioner is the accused in eight cases on the file of the Court of the Judicial First Class Magistrate-II, Pathanamthitta. All the cases against her are filed for an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The trial court issued non-bailable warrant against the petitioner in three cases, S.T.Nos.651/2019, 652/2019 and 653/2019. On 14.11.2019, the petitioner filed applications for advancing the hearing of the aforesaid cases and also submitted applications to release her on bail. The petitioner offered her Crl.M.C.No.593/2020 3 husband and son as sureties. 4. The petitioner alleges that, when the applications for advancing the hearing of the cases were considered, the learned Magistrate directed that three different sets of sureties shall be produced by the petitioner in the three cases. The petitioner has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') seeking the following relief: “ _Therefore, it is most humbly prayed that this honourable court may be pleased to pass an order directing learned magistrate Pathanamthitta to permit 2 very same persons to stand as sureties and execute bond for the petitioner in ST Nos.650/2019, ST No.651/19, ST No.652/19, ST No.653/19, ST No.995/19, ST No.333/19, ST No.363/19 and ST No.188/19, and not to insist that separate sureties shall execute bond in each of the cases and also may direct the learned magistrate to recall warrant issued against the petitioner in ST No.651/19, ST No.652/19 and ST No.653/19.”_ 5. Heard the learned counsel for the petitioner and perused the report obtained from the learned Magistrate. Crl.M.C.No.593/2020 4 6. The learned Magistrate, in her report dated 14.01.2020, has stated that, she did not insist that the petitioner shall produce three different sets of sureties in the three cases. Learned Magistrate has reported that there was only one tax receipt produced by the two sureties and therefore, the petitioner was directed to produce two solvent sureties with two land tax receipts. I find no reason to suspect the truthfulness of this statement made by the learned Magistrate in her report. 7. Section 440(1) of the Code states that, the amount of every bail bond shall be fixed with due regard to the circumstances of the case and shall not be excessive. Section 441(1) of the Code provides that, before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. Section Crl.M.C.No.593/2020 5 441(4) of the Code states that, 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. 8. A person can be released on bail, on one's own bond, with or without sureties. Whether sureties are required or not, what shall be the amount of the bond etc. are matters dependent on the facts and circumstances of each case. In any case, the amount of the bail bond fixed should never be excessive. 9. In a case where sureties are offered, sufficiency and fitness of the sureities can be decided by the court on the basis of the contents of the affidavits filed by them. When a person is offered as a surety, he is expected to swear to an affidavit containing averments as to his solvency and financial capacity. Section 441A of the Code provides that, every person standing surety to an accused person for his release on bail, shall make a Crl.M.C.No.593/2020 6 declaration before the court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars. The court may accept the affidavit filed by the surety to reach its satisfaction regarding the sufficiency and fitness of the surety. 10. However, the practice being followed in the courts is production of tax receipts or other documents by the sureties to prove their solvency and fitness. If the court is not prepared to accept the affidavits filed or the tax receipts produced by the sureties, Section 441(4) of the Code provides that, the court 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 of the sureties. In such circumstances, pending the inquiry, the court may grant interim bail to the accused on his own bond and require him to produce sureties to the satisfaction of the court or direct the sureties to produce proper documents within a time to be fixed by it. If the offence is bailable, normally, the court shall release the accused on interim bail in such a contingency. However, an inquiry, as contemplated under Section Crl.M.C.No.593/2020 7 441(4) of the Code, is the exception rather than the rule. 11. In this context, the observations made by this Court in **Valson v. State of Kerala : 1984 KLT 443** , are very relevant. This Court has held as follows: _“Ordinarily it must be possible for the criminal court to act on the affidavit produced by the surety. An affidavit is a solemn document solemnly affirmed. Prima facie the affidavit is entitled to be taken at its face value. It could be accepted even without tax receipt or document in appropriate cases. As a matter of practice, surety produces tax receipts or other documents along with the affidavit. Ordinarily, from an examination of the tax receipts, the court must be in a position to assure itself about the sufficiency of the surety. In extreme cases where the court, for valid reasons, chooses to reject the sureties offered, it must certainly be possible for the court to grant interim bail on the basis of the affidavit or affidavit supported by tax receipt or release the accused on his own personal bond. ........... Courts would do well to remember that the purpose of insisting on sureties is only to ensure the presence of the accused in court for the purpose of trial and nothing more. Where from the facts and circumstances in a given case it is possible_ Crl.M.C.No.593/2020 8 _to come to the conclusion that there is no likelihood of ''bail jumping'' by the accused who is released on personal bond it would be utterly arbitrary to insist on sureties. Even where sureties are insisted on, ordinarily, due weight must be given to the affidavits produced by the sureties”._ 12. Sound and sober exercise of discretion by the Magistrates would avoid any difficulty or complication in the matter. Ordinarily, a superior court would not be inclined to interfere with the exercise of such discretionary power. Exercise of discretionary powers vested in a court is not open to interference by a superior court so long as the discretion is exercised reasonably and not arbitrarily. 13. In the instant case, the report of the learned Magistrate shows that, when the applications filed by the petitioner for advancing the hearing of the cases were adjourned to the next working day and taken up for hearing on that day, the petitioner was absent and there was no representation for her. Therefore, the learned Magistrate had actually no occasion to pass any order in the bail applications submitted by the petitioner. In such circumstances, the relief sought for in this Crl.M.C.No.593/2020 9 petition cannot be granted in exercise of the power of this Court under Section 482 of the Code. 14. If the petitioner files bail applications in the cases pending against her, the learned Magistrate shall consider such applications in accordance with law and pass appropriate orders, keeping in mind the fact that the offence alleged against the petitioner is bailable. I have no reason to assume that the learned Magistrate would follow any unreasonable practice or procedure. With the aforesaid observations, the petition is dismissed. **==> picture [39 x 13] intentionally omitted <==** ## **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.593/2020 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **ANNEXURE 1 TRUE COPY OF THE CERTIFICATE OF INCORPORATION DATED 05/03/1992.** **ANNEXURE 2 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE NATIONAL HOUSING BANK DATED 17/04/2006.** - **ANNEXURE 3 TRUE COPY OF THE ST NO.650/19 BEFORE THE CJM COURT, PATHANAMTHITTA DATED NIL.** - **ANNEXURE 4 TRUE COPY OF THE ST NO.651/19 BEFORE THE CJM COURT, PATHANAMTHITTA DATED NIL.** - **ANNEXURE 5 TRUE COPY OF THE BAIL APPLICATION IN ST NO.651/19 DATED 14/11/2019.** - **ANNEXURE 5(a) TRUE COPY OF THE BAIL APPLICATION IN ST NO.652/19 DATED 14/11/2019.** - **ANNEXURE 5(b) TRUE COPY OF THE BAIL APPLICATION IN ST NO.653/19 DATED 14/11/2019.** - **ANNEXURE 6 TRUE COPY OF THE LAND TAX RECEIPT DATED 05/11/2019.** ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY PS TO JUDGE