At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
For the Appearing Parties: Philip T. Varghese, Thomas T. Varghese, Achu Shubha Abraham, V.T. Litha, K.R. Monisha, S. Sandeep, C.K. Prasad, Advocates.
1. The petitioners are the accused in the case registered as Crime No.41/2019 of the Kollam Excise Range Office under Sections 20(b)(ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Final report has already been filed in the case. The case has been taken on file by the Court of Session as S.C.No.1061/2019.
2. As per Annexure-A1 order dated 25.09.2019, the Court of Session granted bail to the petitioners on certain conditions. One of the conditions was that the sureties of the petitioners shall produce solvency certificates.
3. The petitioners filed application before the Court of Session for deleting the condition regarding production of solvency certificates by the sureties. Learned Sessions Judge dismissed the aforesaid application as per Annexure-A3 order. It is challenged in this petition filed under Section 482 Cr.P.C.
4. Heard the learned counsel for the petitioners and the learned Public Prosecutor.
5. Learned Sessions Judge has stated in AnnexureA3 order that the accused are involved in many other cases and that there is no sufficient ground to delete the condition regarding the production of solvency certificate by the sureties.
6. Section 441 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') deals with the bond to be executed by the accused and sureties. Section 441 (1) of the Code states 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 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.
7. The whole object of execution of bonds by sureties is to secure the presence of a person facing a trial. What is to be assured is the presence of the accused for the purpose of investigation and trial. Accepting or rejecting a surety is in the discretion of the court. But, the discretion has to be exercised judicially and not arbitrarily. Of course, insistence upon the production of solvency certificates by the sureties is not beyond the powers of the court (See Lokesh Naidu v. State of Kerala, (1992) 2 KLT 508). But, normally, production of solvency certificates by the sureties shall not be insisted. Insistence on solvency certificates by the sureties must be exception rather than the rule (See Valson v. State of Kerala, (1984) KLT 443 and Ashraf v. State of Kerala,1993 2 KLT 330). If the sureties can prove their solvency by other means, there is no necessity to insist for production of solvency certificates (See Syamkumar v. State of Kerala, (2010) 4 KLT 405).
8. There are no exceptional circumstances in this case to insist on production of solvency certificates by the sureties. The fact that the petitioners are involved in other cases is not a sufficient ground to insist production of solvency certificates by the sureties. What is to be considered by the court is the suitability and the sufficiency of the sureties and not the antecedents of the accused.
9. Learned counsel for the petitioners submitted that the sureties of the petitioners are ready to produce the original documents of their property for verification by the court. In my view, it would be sufficient to ascertain whether the sureties are solvent or not.
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In the result, the petition is allowed. AnnexureA3 order is set aside. The condition in Annexure-A1 order that, the sureties of the petitioners shall produce solvency certificates, is set aside. The sureties shall produce the original documents of the properties owned by them, along with attested photocopies of the same, in the court below to prove their solvency and the court shall return the original documents to them after verification.