IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.MC.No. 2060 of 2009() ------------------------- CRMP.2376/2009 IN CR.NO.22/2008 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANACHERRY. .................... PETITIONER(S): ACCUSED: ----------------------------------------- VINOD, S/O.THANKAPPAN, PLANTHOTTATHIL KAROTTU HOUSE, PLANTHOTTAM KARA, THRIKODITHANAM, CHANGANACHERRY. BY ADVS. MR.M.P.MADHAVANKUTTY, MR.GOKUL DAS V.V.H. RESPONDENT(S): COMPLAINANT: --------------------------------------------------- THE EXCISE INSPECTOR, CHANGANACHERRY EXCISE RANGE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2009 ALONG WITH CRMC NO. 2061 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.Nos.2060 & 2061 of 2009 -------------------------- COMMON ORDER Petitioner is the accused in Crime Nos.22/08 and 8/09 of Changanassery Excise Range. In Crime No.22/08, he was granted bail on 22.5.2009 under Annexure-I order in Crl.M.C.No.2060/09 and in Crime No.8/09, he was granted bail on 26.5.2009 under Annexure-I order in Crl.M.C.No.2061/09. While granting bail in Crime No.22/08, Magistrate directed that sureties shall produce solvency certificate or their respective title deeds before court. In Crime No.8/09 also it was provided that sureties shall deposit their respective title deeds before the court. Contending that in spite of statutory bail obtained by the petitioner, he could not be released from custody for failure to get sureties who are prepared to deposit their title deeds or produce the solvency certificates, petitioner filed these petitions to modify the CRMC 2060&2061/09 2 condition directing the sureties to produce solvency certificate or their respective title deeds. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner submitted that the very fact that petitioner is still in custody, in spite of the bail order obtained by him in May 2009, establish that petitioner is not capable of arranging sureties who are prepared to produce solvency certificate or title deeds and when petitioner was granted statutory bail on failure of the Investigating Officer to file a final report within the statutory period, bail cannot be refused by imposing harsh conditions. Relying on the decision of the Apex Court in Motiram v. State of Madhya Pradesh (1978 KLT 747) learned counsel argued that when petitioner is granted bail, he should be able to enjoy the benefit and when the conditions imposed CRMC 2060&2061/09 3 by the learned Magistrate cannot be complied with by the petitioner, it would amount to refusal of bail and therefore, the condition is to be modified. 4. Learned Public Prosecutor pointed out that petitioner was involved in one more case for an offence under the Abkari Act and he was earlier acquitted in one case and petitioner is a habitual offendor of Abkari Act offences and therefore, the learned Magistrate was justified in imposing such condition. 5. When bail is granted, condition imposed shall not cause deprivation of the bail granted. As rightly pointed by learned counsel appearing for the petitioner, the very fact that, in spite of the order granting bail in May 2009, petitioner could not arrange sureties and thereby cannot be released from custody, is sufficient enough to show that the condition imposed by the learned Magistrate is harsh as far as the petitioner is concerned who is CRMC 2060&2061/09 4 incapable of fulfilling the condition. The direction to execute bond by the accused and sureties is for an assurance that he will be available for trial. If that be so, what is necessary is to get an assurance for the presence of the petitioner for the purpose of trial. In such circumstances, when petitioner contends that he is incapable of complying with the condition to produce sureties with title deeds or solvency certificates, the condition is to be relaxed. Petitions are allowed. The condition imposed by the learned Magistrate directing the sureties to deposit their title deeds or solvency certificates is deleted and instead, it is provided that at least one surety should be a close relative of the petitioner, namely, father, mother or brother and Magistrate should be satisfied on the solvency of the sureties. 1st July, 2009 (M.Sasidharan Nambiar, Judge) tkv