IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.MC.No. 3857 of 2009() --------------------------------------- CRL.M.P.NO.6239 OF 2009 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, THIRUVALLA. (CR.NO.476/08 OF THIRUVALLA POLICE STATION) ........ PETITIONER(S): PETITIONER/ACCUSED NO.2: ---------------------------------------------------------------------- SATHEESH SHARMA, AGED 27 YEARS, S/O.SUGANCHAND SHARMA, RESIDING AT SWEETY DANCE CLASSES 1/17/1170 BEHIND OLD POST OFFICE, VISVANAGAR COLONY NANDED, MAHARASHTRA (OLD ADDRESS:JUTHAGALI HOUSE, BADHALOKPASS RAIPUR, PALI DISTRICT, RAJASTHAN) BY ADVS. MR.C.S.MANU, MR.S.K.PREMRAJ. RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY HOME SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM THROUGH DEPUTY SUPERINTENDENT OF POLICE, THIRUVALLA. BY PUBLIC PROSECUTOR MR. P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/12/2009 ALONG WITH CRMC.NO.3858 OF 2009 AND CRMC. NO.3859 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3857,3858 &3859 OF 2009 =========================== Dated this the 4th day of December,2009 ORDER Petitioner is the second accused in Crime No.476/2008, 527/2007 and 926/2008 of Thiruvalla Police Station registered for the offence under sections 457,461 and 380 read with section 34 of Indian Penal Code. By Annexure A1 orders in respective petitions, petitioner was granted bail on conditions. These petitions are filed under sections 482 and 439(1)(b) of Code of Criminal Procedure to quash modify the conditions. Learned Magistrate directed the petitioner to execute a bond for Rs.1,00,000/- with two solvent sureties each for the like sum providing that the sureties shall be residents of State of Kerala and the sureties shall produce solvency certificate. This condition is sought to be lifted or modified. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Learned counsel submitted that when petitioner is a resident of Rajasthan, it is not possible for the petitioner to arrange a surety from Kerala and Crl.M.C.3857,3858 & 3859 of 2009 2 therefore a condition that surety shall be from Kerala would tantamount to denial of bail. Learned counsel also argued that when the direction is to produce solvency certificate, it is a too onerous condition as petitioner cannot produce sureties with solvency certificate. It is also argued that the direction to execute a bond of Rs.1,00,000/- is also too excessive. Learned counsel relied on the decision of this court in Valson v. State of Kerala (1984 KLT 443) and argued that the conditions are illegal and they are either to be quashed or modified. 4. Learned Public Prosecutor pointed out that petitioner is a resident of Rajasthan and subsequently he shifted to Maharashtra and was involved in twenty one cases in Karnataka State and three cases at Thiruvalla and two cases at Kottayam and in such circumstances, learned Magistrate imposed the said conditions to procure the presence of the petitioner for the purpose of investigation and trial and if petitioner is to be released without the said conditions, he will not be available for investigation or trial. It is also pointed out that three other co- accused are yet to be arrested. 5. Though ordinarily while granting bail imposing a condition that sureties shall produce solvency certificate is uncalled for, in exceptional cases, it is justifiable. This is one such exceptional case. Petitioner is a native Crl.M.C.3857,3858 & 3859 of 2009 3 of Rajasthan. He was subsequently shifted to Maharashtra which according to learned counsel is for the purpose of his business. Prosecution case is that petitioner committed offences not only in Kerala but in Karnataka State also. It is pointed out that twenty one cases are registered in Karnataka State. Learned counsel submitted that in all those cases petitioner was released on bail. Petitioner is involved in three cases investigated by Thiruvalla Police and two cases by Kottayam Police. Petitioner was granted bail without such conditions by the Magistrate in respect of the cases pending before the Kottayam Police. If the petitioner is to be released without sufficient conditions, for securing his presence for the purpose of investigation and trial apprehension expressed by the learned Public Prosecutor that he will not be available for investigation appears to be genuine. It is more so when the three co-accused are yet to be apprehended. In such circumstances, the direction of the learned Magistrate to produce solvency certificate by the sureties is justifiable. 6. When petitioner is not a native of Kerala insist for a surety, with solvency certificate, from Kerala may tantamount to denial of bail. In such circumstance, the said condition could be modified. Petitions are disposed directing Judicial First Class Crl.M.C.3857,3858 & 3859 of 2009 4 Magistrate, Thiruvalla to release the petitioner on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum to the satisfaction of the Magistrate. It is made clear that the sureties shall produce solvency certificates. Though sureties need not necessarily be from Kerala, learned Magistrate must assure that the solvency certificate produced are genuine. It is also made clear that the sureties could be common in all the cases and separate sureties need not be insisted in each case. Though learned counsel sought to modify the condition directing petitioner to appear before the Investigating Officer twice in a week, I do not find that the said condition is to be insisted for permanently. That condition would operate only for three months from the date of his release and thereafter petitioner need appear only as and when required by the Investigating Officer. Petitioner shall not induce or threaten any witness from disclosing facts known to him to the police or court and shall not leave Kerala State without previous permission of the Magistrate. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006