IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 Crl.MC.No. 948 of 2011() --------------------------------- CMP.293/2011 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE CR. NO.337/2009 OF FEROKE POLICE STATION. .................... PETITIONER(S): ACCUSED NO.6 ------------------------------------------------ SALIH, S/O.MOIDEENKUTTY, AKKARAKANDIYIL HOUSE, P.O.MORAYUR, MALAPPURAM DISTRICT. BY ADV. SRI.K.V.RAMABHADRAN RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, FEROKE POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/03/2011, ALONG WITH CRMC. NO.954 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.Nos.948 and 954 of 2011 --------------------------------------- Dated this 30th day of March, 2011 ORDER Petitioners are accused in C.C.No.1295 of 2010 of the Court of learned Judicial First Class Magistrate, Kunnamkulam and Crime No.337 of 2009 of Feroke Police Station, respectively. Crl.M.C.No.954 of 2011 relates to C.C.No.1295 of 2010 where the offence involved is Sec.379 of the Penal Code. Learned Magistrate granted bail to the petitioner under Sec.167(2) of the Code of Criminal Procedure (for short, "the Code”) by Annexure- A, order but subject to conditions that petitioner shall execute bond for `.25,000/- with three solvent sureties for the like sum each, that sureties shall produce Notary attested copies of their title deeds along with the tax receipts and that petitioner shall appear before Court on all posting days. Crl.M.C.No.948 of 2011 relates to Crime No.337 of 2009 of Feroke Police Station involving offence punishable under Secs.454, 394, 120(b) r/w Sec.34 of the Penal Code. There also bail was granted to the petitioner under Sec.167(2) of the Code with conditions that he shall execute bond for Rs.15,000/- with two sureties for the like sum each, he shall surrender his passport or file affidavit and that Crl.M.C.Nos.948 and 954 of 2011 -: 2 :- one of the sureties shall be a close relative of petitioner. Petitioners are aggrieved by the conditions. Learned counsel for petitioners addressed argument at length to contend that grant of bail under Sec.167(2) of the Code is not controlled by Sec.437 of the said Code. According to the learned counsel under Sec.437 (3) of the Code the Magistrate is bound to impose certain conditions but the conditions under challenge do not come within the category of those conditions. So far as conditions impugned are concerned learned counsel contends that it affected the statutory right of petitioner to get bail under Sec.167(2) of the Code. According to the learned counsel, bail means providing sureties for appearance having already been ordered by the learned Magistrate. It is contended that conditions imposed affected liberty of petitioners guaranteed under Article 221 of the Constitution. Relying on the decisions in Maganlal Chhagganlal (P) Ltd Vs. Municipal Corpn, of Greater Bombay and Ors. (AIR 1974 SC 2009), Ved Kumar Seth and Anr. Vs. The State of Assam (1975 Crl.L.J 647), Moti Ram and Ors. Vs. State of Madhya Pradesh ((1978) 4 SCC 47), Vijay Singh Vs. Murarilal and Ors. ((1979) 4 SCC 758), Gurbaksh Singh Sibbia Vs. The State of Punjab (AIR 1980 Crl.M.C.Nos.948 and 954 of 2011 -: 3 :- SC 1632), Abadhraj Dukharam Pande and Ors. Vs. State of Maharashtra ((1980) 1 SCC 80), Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Satyen Bhowmick and Ors. (AIR 1981 SC 917), Valson Vs. State of Kerala (1984 KLT 443), Sunil Fulchand Shah Vs. Union of India and Ors. ((2000) 3 SCC 409), Asokan Vs. C.I.of Police, Kadakkal Police Station (2010(1) KHC 1) and Siddharam.V.Satling Appa Mhetre Vs. State of Maharashtra (2010(4) KLT 930) it is contended that the Court has no power to impose conditions and at any rate direct a Notary attested photocopy of title deeds to be produced. According to the learned counsel, what the Court could consider is only sufficiency of the sureties by virtue of Sec.441 of the Code. It is requested that the conditions imposed by the learned Magistrate and impugned in this petition may be set aside. 2. Learned Public Prosecutor contended that statutory right of petitioner is only to get bail under Sec.167(2) of the Code and that even going by the provisions of Sec.167(2) proviso (ii) of the Code, bail granted under Sec.167(2) must be deemed to be one granted under Chapter XXXIII of the Code which takes in Sec.437 of the Code as well. According to the learned Public Crl.M.C.Nos.948 and 954 of 2011 -: 4 :- Prosecutor, offences involved in these cases come under Chapter XVII of the Penal Code and hence it is well within the power of the learned Magistrate even while granting statutory bail under Sec.167(2) of the Code to impose appropriate conditions to ensure presence of petitioners in the course of trial and as such, there is no need to interfere with the impugned order. Reliance is placed on the decisions in Antony Vs. State of Kerala (1986 KLT 86) as also in Asokan Vs. C.I.of Police, Kadakkal Police Station (supra) where learned Judges of this Court while granting statutory bail under Sec.167(2) of the Code has imposed conditions. 3. I have gone through the relevant provisions and considered contentions raised by learned counsel and the learned Public Prosecutor. It is not disputed that on the failure of the Investigating Officer to submit final report within the time provided under Sec.167(2) of the Code, learned Magistrate in both the cases found that petitioners are entitled to get bail under Sec.167(2) of the Code. The question is whether learned Magistrate was justified in imposing conditions including those impugned in these cases while granting bail. Crl.M.C.Nos.948 and 954 of 2011 -: 5 :- 4. It is true that Sec.167(2) of the Code does not speak about imposition of conditions while granting bail and it cannot also be disputed that on the failure of Investigating Officer to submit final reports petitioners were entitled to be released on bail as of right as provided under Sec.167(2) of the Code. Subclause (ii) of Clause (a) of proviso to Sec.167(2) of the Code says that “every person released on bail under this sub-sec shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter.” Chapter XXXIII takes in Sec.437 of the Code as well. Sec.437 deals with the power of Magistrate granting bail in non bailable offences. Sub-clause (3) of that provision says that when a person accused or suspected of commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or ChapterXVII of the Indian Penal Code, (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence is released on bail under sub-sec (1), the Court shall impose conditions referred to in sub-clauses (a) to (c) and further says that the Court may impose in the interests of justice, such other conditions as it considers necessary. Thus, going by sub-sec (c) of Sec.437 while granting bail in non bailable Crl.M.C.Nos.948 and 954 of 2011 -: 6 :- offence the Magistrate has to impose conditions such that person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence while it is within the discretionary power of the Magistrate to impose and may impose any further further condition provided, in the interest of justice it is necessary to impose such conditions. 5. One argument that learned counsel advanced is that Sec.167(2) is not controlled by Sec.437 of the Code and for the said purpose learned counsel has placed reliance on the decision in Ved Kumar Seth and Anr. Vs. The State of Assam (supra) . There, the Guahati High Court was not considering application of sub-sec (3) of Sec.437 of the Code. Instead, provision considered was Sec.437(1) of the Code which deals with power of Magistrate to grant bail in non bailable offences. The question considered was whether notwithstanding the right of accused under Sec.167(2) by virtue of sub-clause (a)(ii) of the proviso to Sec.167(2) it was within the power of the Magistrate to refuse bail exercising discretion under 437(1) of the Code notwithstanding that final report was not submitted within the Crl.M.C.Nos.948 and 954 of 2011 -: 7 :- prescribed time. It was held that sub-clause (ii) of clause (a) of proviso to Sec. 167(2) only said that every person released on bail under Sec.167(2) shall be deemed to be released on bail under Chapter XXXIII of the Code. That does not mean that according to the Guahati High court there is no application for Sec.437(3) of the Code in a case where bail is granted under Sec.167(2). At least, I am unable to think and agree so. 6. It is contended by learned counsel that the conditions imposed by learned Magistrate in the cases on hand relates to fitness or sufficiency of sureties which is to be decided under Sec.441 of the Code. Learned counsel has placed reliance on the decision of this court in Valson Vs. State of Kerala (supra) and in particular paragraph 3 and 6. Sec.441(4) of the Code no doubt deals with the power of Court to determine whether the sureties offered by the accused are fit or sufficient. The said provision also empowers the Court to accept affidavits in proof of the facts contained therein relating to fitness or sufficiency of 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. I may say that the said provision only deals with fitness of the sureties offered and not to Crl.M.C.Nos.948 and 954 of 2011 -: 8 :- any condition that the learned Magistrate may impose under clauses (a) to (c) or under the discretion of the Magistrate under subsec.(3) of 437 of the Code. In Valson Vs. State of Kerala (supra) the question considered was whether a criminal Court can act on the affidavit of surety without tax receipt or document and about the desirability of granting bail on personal bond. I must bear in mind that the question whether affidavit of the surety can be acted upon without tax receipt or document and whether accused could be granted bail on personal bond must depend on various factors including the antecedents of the accused and the nature of offence allegedly committed. The offence involved in that case was under Sec.86(1) of the Motor Vehicles Act and Rule 328 of the Motor Vehicles Rules and not offences of the nature involved as in these cases. Hence principle laid down in that decision has no application either by law or on facts to the present cases. 7. Yet another decision the learned counsel has relied upon is Moti Ram and Ors. Vs. State of Madhya Pradesh (supra) where the question whether it is bail or jail and whether accused must be sent to the jail having regard to the facts of the case was decided. In Gurbaksh Singh Sibbia Vs. The State of Crl.M.C.Nos.948 and 954 of 2011 -: 9 :- Punjab (supra) what is considered is the power of the Court to grant bail or anticipatory bail under Secs.437 and 438 of the Code and power of the Court to impose conditions. It was held that the Court has the power to impose conditions while granting bail or anticipatory bail under the said provisions. 8. Reliance is placed on the decision of the Supreme Court in Siddharam.V.Satling Appa Mhetre Vs. State of Maharashtra and in particular, paragraphs 64, 65, 67, 91 and 107. But that decision dealt with matters relating to the grant of anticipatory bail and the precautionary steps the Court has to adopt while granting anticipatory bail and the duration of anticipatory bail. No doubt, no Court can impose a restriction which effects the liberty of a citizen under Article.21 of the Constitution except by law established. 9. In the present cases, the law established is Sec.437(3) of the Code. Even in the matter of grant of statutory bail under Sec.167(2) of the Code conditions provided under Sec.437(3) of the Code could be imposed in view of clause (a)(ii) of Subsec.(2) of Sec.167 of the Code since the offences involved in these cases come under Chapter XVII of the IPC and Chapter XXXIII of the Code which takes in Sec.437 of the Code as well. Other decisions Crl.M.C.Nos.948 and 954 of 2011 -: 10 :- relied on by learned counsel only deal with the liberty of citizen under Article.21 of the Constitution which I have already adverted to. 10. Having regard to the contentions raised by both sides I am inclined to hold that it is not as if the Magistrate has no power to impose conditions in exercise of his discretion while granting statutory bail under Sec.167(2) of the Code. This view of mine is fortified by two decisions of this Court, in Antony Vs. State of Kerala (supra) (See operative portion of the decision) and Asokan Vs. C.I.of Police, Kadakkal Police Station (supra) where, while granting statutory bail under Sec.167(2) of the Code this Court imposed conditions. 11. The next question is whether in these cases learned Magistrate was justified in imposing the impugned conditions. So far as Crl.M.C.No.948 of 2011 is concerned, offences involved are under Secs.454, 394 and 120(b) r/w Sec.34 of the Indian Penal Code. Needless to say, serious offences are attributed to the petitioner. In Crl.M.C.No.954 of 2011 offence involved is under Sec.379 of the Indian Penal Code. It would appear that petitioner was absconding for quite long and the case against him was included in L.P.No.148 of 2002. In these circumstances, I am Crl.M.C.Nos.948 and 954 of 2011 -: 11 :- satisfied that learned Magistrate was justified in imposing conditions referred to in the respective orders which are under challenge. 12. Lastly it is argued that at any rate, learned Magistrate was not correct in directing the Notary attested photocopy of the title deeds to be produced by the petitioner in Crl.M.C.No.954 of 2011. I stated that in that case, petitioner was allegedly absconding and the case against him was included in the LP register. In Asokan Vs. C.I.of Police, Kadakkal Police Station (supra) this Court found that the direction issued by the Magistrate to produce “original title deed of sureties is unwarranted in law”. That order was set aside but, it was directed that one of the sureties shall be a close relative of accused (as the learned Magistrate directed in Crl.M.C.No.948 of 2011). 13. In Crl.M.C.No.954 of 2011 the direction is not to produce the original document of title. Instead, sureties are directed to produce a Notary attested copy of their title deed. That is to ensure that the surety is suitable and fit to take the accused on bail. It is within the power of learned Magistrate to ensure that surety is the owner of property which is offered as Crl.M.C.Nos.948 and 954 of 2011 -: 12 :- security and referred to in the bail bond. To ascertain that, in appropriate cases it is within the power of learned Magistrate to direct that a copy of the sale deed be produced. I do not find any illegality in learned Magistrate directing production of Notary attested copy of title deed of the sureties to ensure that they are the owners of the property as they clam and as stated in their affidavits. 14. Having heard learned counsel for petitioners and learned Public Prosecutor, I do not find reason to interfere with the conditions imposed by the learned Magistrate and which are impugned before me. But I make it clear that if sureties are desirous of any modification of the conditions it is open to them to approach learned Sessions Judge on appropriate grounds and as provided under law. Resultantly these criminal miscellaneous cases are dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-