BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/04/2008 CORAM THE HONOURABLE MR. JUSTICE S. NAGAMUTHU CRL.O.P.(MD)No.3904 of 2008 Anbarasan, S/o. Sakkaraj Devar, Meetu Vadakadai, Rajapalayam, Virudhunagar District. ...... Petitioner Vs State rep. by the Sub Inspector of Police, Mathur, Pudukkottai District, Crime No.37 of 2008. ......Respondent Criminal Original Petition, filed under Section 482 Cr.P.C to set aside the condition imposed by the learned District Munsif cum Judicial Magistrate, Keeranur in Crl.M.P.No.900 of 2008 dated 15.03.2008 regarding verification sureties by the Probation Officer and to direct the trial Court to accept the sureties without seeking report from the Probation Officer. !For Petitioner ... Mr. P. Ganapathi Subramanian ^For Respondent ... Mr. L. Murugan Government Advocate (Crl. Side) :ORDER
“Whether a Probation Officer appointed under the Probation of
Offenders Act, 1958 can be directed by a Court or a Judicial Magistrate to
enquire into the character, conduct or the other details of a person, who offer
himself as surety for the release of an accused, who has been granted bail in a
criminal case” is the question involved in this petition.
2. The petitioner is the accused in Crime No.37 of 2008 on the file
of the respondent police for alleged offences under Sections 507 and 509 I.P.C
read with Section 4 of the Tamil Nadu Prohibition of Women Harassment Act, 2002.
He was arrested by the respondent police and later on, the learned District
Munsif cum Judicial Magistrate, Keeranur by an order dated 15.03.2008 in
Crl.M.P.No.900 of 2008 granted bail to the petitioner. In the said order, the
learned Magistrate has directed the release of the petitioner on execution of a
personal bond with two sureties each for a like sum of Rs.10,000/-. In the same
order, the learned Magistrate has further directed that the permanent residence
and the character of the persons, who offer themselves as sureties, shall be
verified by the Probation Officer. The petitioner challenges the said condition
viz., the direction for verification of the permanent residence and the
character of the sureties by the Probation Officer.
3. Before going into the other details of the case, it is worthwhile
to refer to the relevant provisions of the Code of Criminal Procedure relating
to Sureties. Section 441 of Cr.P.C reads as follows:-
“441. Bond of accused and sureties:- (1) 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.
(2) Where any condition is imposed for the release of any person on bail,
the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released
on bail to appear when called upon at the High Court, Court of Session or other
Court to answer the Charge.
(4) 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.”
441-A. Declaration by sureties:- Every person standing surety to an
accused person for his release on bail, shall make a 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.”
A close reading of sub-clause (4) of Section 441 of Cr.P.C would go to show that
for the purpose of determining whether the sureties are fit or sufficient, the
Court has two options before it viz., either to accept the affidavit in proof of
the facts contained therein relating to the sufficiency or fitness of the
sureties or the Court may in appropriate cases hold an enquiry itself or cause
an enquiry to be made by a Magistrate subordinate to the Court regarding the
sufficiency or fitness of the sureties. This provision does not empower the
Magistrate to direct an enquiry to be held by a Probation Officer. A plain
reading of the above said clause would make it manifestly clear that either the
Magistrate or the Court before which the sureties stand shall enquire or may
direct any Magistrate, who is subordinate it to hold the said enquiry.
4. Now, it is necessary to refer to the provisions of the Probation
of Offenders Act, 1958 dealing with his powers and duties. Section 2(b) of the
Act defines the term “Probation Officer”, which is as follows:
“(b) “Probation Officer” means an officer appointed to be a
probation officer or recognized as such under Section 13″.
Section 13 of the Act speaks of the appointment of Probation Officer and Section
14 of the Act provides for duties of the Probation Officer. Section 14 of the
Act reads as follows:-
“14. Duties of Probation Officer:- A probation Officer shall, subject to
such conditions and restrictions, as may be prescribed, –
(a) inquire, in accordance with any directions of a Court, into the
circumstances or home surrounding of any person accused of an offence with a
view to assist the Court in determining the most suitable method of dealing with
him and submit reports to the Court.
(b) supervise probationers and other persons placed under his supervision
and, where necessary, endeavour to find them suitable employment;
(c) advise and assist offenders in the payment of compensation or costs
ordered by the Court;
(d) advise and assist in such cases and in such manner, as may be
prescribed, persons who have been released under Section 4 and
(e) perform such other duties as may be prescribed. ”
5. Similarly, Rule 20 of the Tamil Nadu Probation of Offenders
Rules, 1962 deals with other duties of Probation Officer, which is as follows:-
“20. Other duties of Probation Officer:- The Probation Officer may also
undertake the following functions:-
(1) Educating the public and mobilizing support for the probation system;
(2) mobilizing public assistance and co-operation in the field of social
defence;
(3) being in charge of any institution or other premises referred to in
Rule 31 that may be assigned;
(4) any other duties of cognate nature which may be assigned by order of
the State Government;
6. A conjoint reading of the above two provisions would go to show
that the duties of the Probation Officer are only to the extent enumerated in
Section 14 of the Act and Rule 20 of the Rules. Nowhere in these two provisions
any thing has been said about power of the supervision or enquiry or
verification of the antecedents, character and the fitness of persons other than
offenders by the Probation Officer. Thus, going by the plain reading of these
two provisions, I have no difficulty in holding that the Probation Officer
cannot be directed by any Criminal Court including Judicial Magistrates to
enquire into the fitness or sufficiency of a surety and to submit a report to
him.
7. Now, let me analyse various judgments cited at the bar. In the
decision reported in Hussainara Khatoon and others ..Vs.. Home Secretary, State
of Bihar (A.I.R. 1979 S.C. 1360) the Hon’ble Supreme Court has held as
follows:-
“The enquiry into the solvency of the accused can become a source of
great harassment to him and often result in denial of bail and deprivation of
liberty and should not, therefore, be insisted upon as a condition of acceptance
of the personal bond. We have no doubt that if the system of bail, even under
the existing law, is administered in the manner we have indicated in this
Judgment, it would go a long way towards relieving hardship of the poor and help
them to secure pre-trial release from incarceration.”
8. In the decision reported in Moti Ram and others ..Vs.. State of
Madhya Pradesh (A.I.R. 1978 S.C 1594) the Supreme Court has held as follows:-
“22. A semantic smog overlays the provisions of bail in the Code and
prisoners’ rights, when cast in ambiguous language become precarious. Where
doubts arise the Gandhian talisman becomes a tool of interpretation: “Whenever
you are in doubt … apply the following test. Recall the face of the poorest
and the weakest man whom you may have seen, and ask yourself, if the step you
contemplate is going to be of any use to him”. Law, at the service of life, must
respond interpretatively to raw realities and make for liberties.
31. It shocks one’s conscience to ask a mason like the petitioner to
furnish sureties for Rs.10,000/-. The Magistrate must be given the benefit of
doubt for not fully appreciating that our Constitution, enacted by “We, the
people of India”, is meant for the butcher, the baker and the candle – stick
maker – shall we add, the bonded labour and pavement dweller.
32. To add insult to injury, the magistrate has demanded sureties from his
own district! (We assume the allegation in the petition). What is a Malayalees,
Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or
theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He
cannot have sureties owning properties in these distant places. He may not know
any one there and might have come in a batch or to seek a job or in a morcha.
Judicial disruption of Indian unity is surest achieved by such provincial
allergies. What law prescribes sureties from outside or non-regional language
applications? What law prescribes the geographical discrimination implicit in
asking for sureties from the Court district? This tendency takes many forms,
some times, geographic, sometimes linguistic, sometimes legalistic. Art.14
protects all indian qua indians, within the territory of India. Art. 350
sanctions representation to any authority, including a Court, for redress of
grievances in any language used in the Union of India. Equality before the law
implies that even a vakalat or affirmation made in any State language according
to the law in that State must be accepted everwhere in the territory of India
save where a valid legislation to the contrary exists. Otherwise, an adivasi
will be unfree in Free India, and likewise many other minorities. This
divagation has become necessary to still the judicial beginnings, and to inhibit
the process of making Indians aliens in their own homeland. Swaraj is made of
united stuff”.
9. In the decision reported in State of Rajasthan ..Vs.. Lalsingh
(1987 Crl.L.J. 269), a single Judge of Rajasthan High Court has held as follows:
“If the personal bond and surety bonds are furnished and affidavit is
filed by the surety about his status, generally the same should be accepted. If
the Court has any doubt, then the proper course is to accept it as an interim
measure, release the accused and then send it for verification and if on
verification the status of surety is found less, then the accused should be
called upon to furnish fresh surety in the amount for which he has been ordered
to furnish.”
10. Keeping in view the observations of the Hon’ble Supreme Court
and the Rajasthan High Court as extracted above and also having analysed the
provisions of the Code of Criminal Procedure and the Probation of Offenders Act,
I am of the considered opinion that no Court including a Magistrate has any
power to order an enquiry to be held by Probation Officer with reference to the
fitness or sufficiency of the sureties. The Probation Officer has got neither
duty nor power to enquire into the character, conduct and related matters in
respect of persons who are not offenders. I am informed by the Bar that in many
Courts in this State, the practice of directing the Probation Officers to
enquire into the sufficiency and fitness of the sureties is followed and in the
result until such report is received the accused are made to languish in jails.
It is really shocking as the same is against the fundamental rights guaranteed
under the Constitution of India.
11. For all the above reasons, this petition is allowed and the
impugned order dated 15.03.2008 of the learned District Munsif cum Judicial
Magistrate, Keeranur in Crl.M.P.No.900 of 2008 directing the sureties to be
verified by the Probation Officer is set aside. It is made clear that in future
the criminal courts in the
State would do well in strictly adhering to the provisions of law quoted above
and also will have regard for the personal liberty of individuals while dealing
with such matters relating to bail.
Dpn/-
To:
1. The Principal District Judge,
Pudukkottai.
2. The Additional District and Sessions
Judge, Pudukkottai.
3. The District Munsif cum
Judicial Magistrate,
Keeranur.
4. The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.