Court Cannot insist on the Local Surety and even a beggar can stand as surety if he has valid residential proof.
Travesty Of Justice If Prisoner Can’t Get Benefit Of Bail Order Due To Inability To Furnish Local Surety: Supreme Court.
The Supreme Court today (September 18) directed the release of a POCSO convict who continued to remain in custody despite a bail order passed in May 2024. The petitioner had been unable to secure release due to his inability to furnish local surety.
A bench of Justice Hrishikesh Roy, Justice Sudhanshu Dhulia and Justice SVN Bhatti noted that continuing to keep him in custody despite a bail order would violate his fundamental rights under Article 21 of the Constitution.
“It would be a travesty of justice if the petitioner is unable to secure the benefit of bail order for his inability to furnish local surety. This will infringe the rights guaranteed under Article 21 of the Constitution for the person, who continues to be detained despite a bail order in his favour”, the Court held.
The Court observed that the justice system must be sensitive to the plight of indigent convicts who are unable to meet bail conditions due to financial incapacity. The petitioner has been in actual custody for seven years and one month, the Court noted.
“The justice delivery mechanism cannot be oblivious of the plight of the indigent convicts who are unable to provide local surety. For their incapacity to meet the bail terms, the applicant continues to languish in jail notwithstanding the bail order passed in his favour as far back as on 03.05.2024”, the Court said.
The petitioner was convicted under Sections 4, 6, and 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, by the Special Judge, Greater Mumbai, and sentenced to ten years of rigorous imprisonment. In 2019, the Bombay High Court dismissed his appeal against conviction. Thus, he filed the present SLP before the Supreme Court.
The Supreme Court granted him bail in May 2024 on terms and conditions to be decided by the trial court. However, due to his inability to furnish local surety, he continued to remain in the Kolhapur Central Prison.
The Court directed the petitioner’s release on his personal bond without the requirement of local surety, ensuring compliance with the bail order of May 3, 2024.
Case Title : Ramchandra Thangappan Aachari v. State of Maharashtra : SC
Even A Beggar Can Stand As Surety If He Has Acceptable Residential Proof: Madras HC.
Simply because a person is poor, who has no property, no money, no job, it cannot be said that he is disqualified to stand as a surety. When the accused executes bail bond, when the surety executes surety bond, the court cannot insist production of property documents, surety need not be a government servant or a blood relative or a local surety, said the court.
In a significant judgment on bail jurisprudence, the Madras High Court has recently held that demanding production of property documents or RC book or any other document to show proof of property, either movable or immovable, with respect to the bail bond or surety bond amount, is against Article 21 of Constitution of India.
Justice P Devadass also held that the person, who is offering surety, must have acceptable residential proof.
“He may be a tenant, licensee. A beggar can also stand as surety, provided he should have some acceptable residential proof. A surety should have a genuine address. He may be asked to produce residential proof. He should not be a vagabond. He should establish his identity. A poor man can be a voter. Likewise, a poor man can be a surety. A surety can be a person without having own house. He can be a tenant. Even a person living in a platform, living in a slum having an acceptable address proof can also stand as a surety,” the court said.
Justice Devadass clarified that a court cannot demand production of property documents from the accused or the surety. Nowhere in Section 436 or 437 or 439 or 438 CrPC or in Form No.45 appended to Schedule II to the Code of Criminal Procedure, 1973, production of property document, title deeds, etc either by surety or by the accused, has been contemplated.
“The courts demanding production of V.A.O. certificate, Residence certificate, Solvency Certificate or Tahsildar Certificate are not mentioned in the Code of Criminal Procedure. These are all creations and inventions of certain Courts. It is clear that these are all not out of any judicial thinking. It is out of an useless thinking curbing the liberty of the individual,” it said.
Some courts insist that the surety should be a government servant or a public servant or a person permanently employed in a reputed concern. This is not at all mentioned in the Code of Criminal Procedure. These are all inventions not by the code, but by some courts. It cannot be said all government servants, public servants are Buddhas. There are many government servants who are cheats. In many cases under Section 420 IPC, many government servants figure as accused.
“There are many private individuals having sterling qualities. Mahatma Gandhi is not a Government servant. But he is Father of our Nation. Yet, as per the present practice being adopted by certain criminal Courts, even Mahatma Gandhi cannot be accepted as a surety. Simply because a person is poor, who has no property, no money, no job, it cannot be said that he is disqualified to stand as a surety,” it said.
“Chapter 33 of the CrPC does not say that the surety should be a member of the family or a blood relative. Court cannot insist that the sureties should be local surety. Suppose if the accused belongs to a different district, different State or even a foreigner or the accused is a business man or working here such as Nepalies, Biharies, etc. who will not have local sureties, their relatives are also in Bihar etc., it will be difficult for them to secure local sureties,” it said.
The high court also held that anyone of the following documents can be accepted by the courts for address verification:
The high court also held that anyone of the following documents can be accepted by the courts for address verification:
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- Passport
- Ration card
- PAN card
- Driving licence
- Voter’s ID
- Aadhaar card
- Photo ID issued by a recognized educational institution
- Photo credit card
- Kissan photo passbook
- Pensioner’s photo card
- Freedom fighter photo card
- Identity Certificate with photo issued by a Gazette officer or Tahsildar
- Address card with photo issued by the Postal Department
- Disability ID card or handicapped medical certificate issued by the government
- NREGS Job Card
- CGHS/ECHS/State Government/ESIC Medical Card
- Marriage certificate issued by the government
- Post Office statement or passbook.
- Water Bill
- Electricity Bill
- Property Tax Receipt
- Landline telephone bill
- Credit card statement
- Income-tax assessment order
- Arms licence
- Certificate of Address issued by the head, village panchayat or an equivalent authorit
- Registered lease/sale/rent agreement.
- Caste and Domicile Certificate that has photo issued by the state government
- Gas connection bill
- Insurance policy