IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 Crl.M.C.No. 318 of 2009 ---------------------------- CRIME NO. 190/2008 OF FEROKE POLICE STATION PETITIONER/ACCUSED:- ------------------------------ NEYAZ AHMAD, S/O.ABDUL KARIM, C-36, MORADIROAD, BATLA HOUSE, JAMINA NAGAR, OKHALA, NEW DELHI PERMANENT HOUSE AT JARALPUR VILLAGE, POST OFFICE, POLICE STATION JAGAPATTI, WEST CHAMPARAN DISTRICT, BIHAR, NOW RESIDING AT BABA MANZIL, KADALUNDI ROAD, P.O.FEROKE, CALICUT. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): --------------- STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE FEROKE POLICE STATION , THROUGH , THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 9/02/2009, THE COURT ON 09/02/2009 PASSED THE FOLLOWING: K. HEMA, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.M.C.. No. 318 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 9th day of February, 2009 O R D E R This petition is filed under section 482 Cr.P.C. to direct the Judicial Magistrate of First Class-V, Kozhikode to permit the petitioner to substitute sureties, who executed bond in Crime no.190/2008, without insisting of personal presence of the existing sureties or issue any other direction or orders, as this Court may deem fit and proper. 2. Petitioner was granted bail by this Court as per Annexure-A1 order in B.A. no.3522/2008 and he was directed to execute a bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the Magistrate Court concerned. There was a condition that he shall report before the Investigating Officer on every Monday and Wednesday between 10 a.m. and 1 p.m.. On a subsequent application filed as Crl.M.A. no.4981/2008 conditions imposed were modified by this Court as per Annexure-A2 order, as follows:- “ i) In addition to the two solvent sureties who have executed bond, petitioner's father shall also execute a bond for the same amount whether he is solvent or not and he shall produce identity card or some document to Crl.M.C.318/09 2 prove his identity. (The learned Magistrate is directed to explain the consequences of breach of condition to petitioner's father personally at the time of execution of bond). ii) Condition in clause no.(ii) will stand lifted, on execution of bond, as stated in clause no.(i) above. 3. In compliance of the direction in Annexure-A1, petitioner executed bond with two solvent sureties. In the light of Annexure-A2 order, petitioner's father appeared before the lower court along with two fresh sureties to execute a fresh bond with the prayer to allow substitution of sureties. But that was not allowed by the learned Magistrate, since the bond executed by the accused and sureties earlier had not been forfeited. Learned Magistrate also found that the accused cannot be allowed to execute bond with new sureties and hence, the petition was dismissed. The said order is under challenge. 4. On hearing both sides, I find that learned Magistrate cannot be found fault with, in not allowing substitution for new sureties, in the peculiar circumstances. If a fresh bond is executed without discharging the earlier sureties, two bonds will be in existence for appearance of accused and if accused Crl.M.C.318/09 3 commits any default or breach of bond, there will be confusion as to which of the sureties shall be proceeded against, etc. A question will arise whether both sets of sureties have to be proceeded against for breach of bond by the accused, since both the bonds will be in force, if the substitution is allowed by the learned Magistrate. 5. However, I find that petitioner is faced with a difficult situation, since earlier sureties have refused to appear in court and apply for discharge. Petitioner has, therefore, arranged two other fresh sureties and petitioner's father has also come forward to execute a fresh bond in compliance of Annexure-A2 order. In such circumstances, I find that to secure ends of justice, and appropriate order is to be passed and hence, the following order is passed:- 1) Petitioner is allowed to execute a fresh bond for Rs.25,000/- with two fresh sureties each for the like amount. Petitioner's father shall also execute a bond for the same amount of Rs.25,000/- whether he is solvent or not and petitioner shall be released on bail, on execution of such bond. 2) This order shall be treated as the order passed Crl.M.C.318/09 4 in modification of the clause (1) in Annexure- A1 order. Therefore, the sureties who executed bond earlier, as per Annexure A1 order, will be treated as discharged. This petition is disposed of accordingly. K.HEMA, JUDGE. mn.