Surety need not be Govt servant, blood relative or local. No property/vehicle papers required-Madras HC

Surety need not be Govt servant, blood relative or local. No property/vehicle papers required. Beggar too qualified if has acceptable residential proof – Madras High Court

surety need not be Govt servant

ABCAUS Case Law Citation:
ABCAUS 1234 (2017) (05) HC

Date/Month of Pronouncement: April, 2017

Important Case Laws Cited relied upon:
Maneka Gandhi vs. Union of India (AIR 1978 SC 597)

Motiram and others vs. State of Madhya Pradesh [(1978) AIR 1594)
Sandeep Jain Vs. National Capital Territory of Delhi (CDJ 2000 SC 025)
Ramathal & Others Vs. Inspector of Police & Another (CDJ 2009 SC 443)
Sakthivel Vs. Inspector of Police [2015 (2) MWN (Cr.) 438]
Navaneetha Krishnan Vs. Inspector of Police [2015 (2) MWN (Cr.) 53]
Sundar @ Ashok vs. State

Brief Facts of the Case:
The instant petition was filed by the petitioner to modify certain portion of the bail condition in which Hon’ble Madras High Court while granting anticipatory bail, inter alia had imposed a condition for executing by the petitioner a bond for Rs. 15,000/- (Rupees fifteen thousand only) with two blood related sureties each for a like sum to the satisfaction of the said Magistrate.

The petitioner submitted that sureties are not in a position to execute the surety bonds, because of certain prevalent practices followed by the Courts which did not have the sanction of law. It was submitted that Courts insists production of property documents. Sometimes, in lieu of the same, Courts demand production of RC books of two-wheelers, four-wheelers, etc.

It was submitted that there is no provision in the Code of Criminal Procedure (CPC) to direct the accused and the surety to produce such documents and any such a direction is against Article 21 of the Constitution of India.

It was also submitted that in some cases, Courts require ‘blood relatives’, ‘family members’, ‘Government servants’, ‘public servants’ ‘permanent employees’, ‘local residents as sureties and if the accused could not get such sureties, it leads to many malpractices.

It was submitted that a simple procedure not involving complications, complexities, illegalities ensuring genuineness of bail bonds and surety bonds is sufficient. That directing production of property documents etc. is a curb on persons right to be released on bail. It also amounts to indirect denial of bail. It is a matter of safeguarding Human Rights and rights of the accused.

Observations made by the High Court:
It was observed that the grievance expressed were very important as they were concerned with securing the liberty of the individual in pursuance of bail orders. They become more important because they are concerned with Human Rights of the accused. Human Rights of the accused cannot be reduced to shambles nor crushed.

The Hon’ble Court observed that Article 21 is the soul of the Indian Constitution. The bail provisions and the provisions relating to bail bonds and surety bonds could not run counter to Article 21 of the Constitution of India. Thus, any bottle necks or curbs to secure the liberty of the accused in pursuance of a bail order, requires deep study.

The Hon’ble High Court observed that when a surety is to be produced, how the Court has to deal with it has been stated in Section 441 of Cr.P.C. According to which the surety should be a fit person and the sureties are expected to file surety affidavits. If the Court consider it necessary, it can conduct enquiry by itself or it can direct a Subordinate Court to conduct enquiry as to the fitness of the person to stand as surety. Under the garb of conducting surety verification, there cannot be a cruelling exercise. There cannot be indignation to a surety, which will make him to run away from the Court without offering surety. The only thing the court is expected is to ascertain, whether the surety is willing to stand as a surety for the accused. A person coming as a surety shall not be made to feel, why he should stand as a surety for the accused.

The Hon’ble High Court clarified that actually, the surety bond is given to the Court. It is not a bond between the accused and the surety. It is a bond between the surety and the Court. The surety undertakes, assures, guarantees the appearance of the accused in the Court. If the surety has doubt on the appearance of the accused, or he do not likes to stand as a surety, he can apply to the Court for discharging himself from the surety bond.

The Hon’ble High Court opined that some times an accused, who is an utter stranger to the area or he has no friends or relatives in the area or he could not secure a person to stand as surety can offer cash surety. The Court can accept cash surety, instead of personal surety. But the Court cannot demand personal surety, property surety and cash surety, at a time. It is not cumulative. It is alternative.

The Hon’ble High Court stated that In order to safeguard the personal liberty of the human being, there are certain international conventions. Convention on civil and political rights is very important in this area. One of the internationally accepted basic principle is that there shall not be any discrimination, prohibition, curbing of personal liberty of the person.

The Hon’ble High Court stated that the Hon’ble Supreme Court had ruled that the bail condition should not be imposed in such a way that a rich man can go out of the jail on bail while a man who has no money, no property, who is unable to produce such surety shall suffer in jail.

The Hon’ble High Court opined that a Court cannot demand production of property documents from the accused, surety. Nowhere in the Code of Criminal Procedure, 1973, production of property document, title deeds, etc. either by surety or by the accused has been contemplated.

The Hon’ble High Court opined that a Magistrate or a Sessions Judge or any Court, demanding production of property documents or R.C. book or any other document to show proof of property either movable or immovable with respect to the bail bond or surety bond amount is against law. It is against Article 21 of Constitution of India. It is against the dictum of the Hon’ble Supreme Court judgment laid down in Maneka Gandhi vs. Union of India.

It was opined that the Courts demanding production of V.A.O. certificate, Residence certificate, Solvency Certificate or Tahsildar Certificate are not mentioned in the Code of Criminal Procedure. These are all creations and inventions of certain Courts. It is clear that these are all not out of any judicial thinking. It is out of an useless thinking curbing the liberty of the individual. Similarly, Court insisting that the surety should be a Government servant or a public servant or a person permanently employed in a reputed concern is not at all mentioned in the Code of Criminal Procedure. These are all inventions not by the Code but by some courts.

The Hon’ble High Court also opined that Code does not say that the surety should be a member of the family or a blood relative. Neither the Court can insist that the sureties should be local surety.

The Hon’ble High Court opined that a surety should have a genuine address. He may be asked to produce residential proof. He should not be a vagabond. He should establish his identity. A poor man can be a voter. Likewise, a poor man can be a surety. A surety can be a person without having own house. He can be a tenant. Even a person living in a platform, living in a slum having an acceptable address proof can also stand as a surety. A person who is offering surety must have acceptable residential proof. He may be a tenant, licensee. A beggar can also stand as surety provided he should have some acceptable residential proof.

The Hon’ble High Court opined that when superior Courts grants bail directs the accused to execute bail bond by himself as well as by the sureties. Unless otherwise stated, in the bail or anticipatory bail order, as the case may be, ‘bond’ means personal bond. In such circumstances, the Courts directing the sureties to produce property documents is beyond the scope of the bail order of the superior court.

List of Acceptable documents for verification of sureties

It was opined that Courts should be satisfied as to the genuineness, identity of the surety and his residential address. It is equally applies to the accused. For this purpose, the Court can accept copy of anyone of the following documents after verification.

1 Passport
2 Ration Card
3 PAN card
4 Driving license
5 Voter’s ID
6 Aadhaar Card
7 Photo ID issued by a recognised Educational Institution
8 Photo credit card 9 Kissan Photo Passbook
10 Pensioner’s Photo card
11 Freedom fighter photo card
12 Identity Certificate with photo issued by a Gazetted officer or Tahsildar
13 Address card with photo issued by the Postal Department
14 Disability ID card or handicapped medical certificate issued by the Government
15. NREGS Job Card
16.CGHS/ECHS/State Government/ESIC Medical Card
17. Marriage Certificate issued by the Government
18. Post Office Statement or Passbook
19. Water Bill
20. Electricity Bill
21. Property Tax Receipt
22. Landline Telephone Bill
23. Credit Card Statement
24. Income-tax assessment order
25. Arms License
26. Certificate of Address issued by the head, Village Panchayat or an equivalent authority
27. Registered Lease/Sale/Rent Agreement
28. Caste and Domicile Certificate that has photo issued by the State Government
29. Gas Connection Bill
30. Insurance Policy

Thus the Hon’ble High Court concluded that when the accused executes bail bond, when the surety executes surety bond, Court cannot insist production of property documents, surety need not be a Government servant or a blood relative or a local surety.

The Hon’ble High Court particularly clarified that since these directions are concerned with the liberty of the individual and the personal freedom guaranteed in Article 21, Constitution of India and the dictum of the Hon’ble Supreme Court any deviation of the above directions by the Subordinate Courts shall be viewed very seriously.

surety need not be Govt servant

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