1992 ALLMR ONLINE 623

S.P. KURDUKAR AND M.F. SALDHANHA, JJ.

IN RE ASSISTANT COLLECTOR OF CUSTOMS Vs.

Cri.Suo Motu Rev, Appln. No. 3 of 1992

12th August, 1992

Petitioner Counsel: A. R. Gupte, G. T. George
Respondent Counsel: S. G. Page

Criminal P.C. (1973),S. 437,S. 444,S. 441,S. 442,S. 443 Criminal P.C. (1973),S. 437,S. 444,S. 441,S. 442,S. 443 Criminal P.C. (1973),S. 437,S. 444,S. 441,S. 442,S. 443 Criminal P.C. (1973),S. 437,S. 444,S. 441,S. 442,S. 443 Criminal P.C. (1973),S. 437,S. 444,S. 441,S. 442,S. 443

JUDGMENT

KURDUKAR, J. :- On a discreet enquiry made by an officer of this Court, it was noticed that in some of the Customs matters, the Accused who were released on bail have been absconding and not traceable to face the trial. As far as the sureties are concerned, they raise a plea that their surety bonds were provisional and for a limited period. After expiry of the said period, they are not bound by the surety bonds. The result, therefore, is that the Accused are not traceable and no action can be taken against the sureties. It is in these circumstances, that we are required to consider and lay down guidelines in matters of bail in terms of sections 441. 442, 443 and 444 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code").

2. For the purpose of this judgment, we may narrate a few facts from Criminal Suo Motu Revision Application No. 3 of 1992, which arises out of R. A. No. 893/1990 renumbered as Criminal Case No. 728/CW/91. Chief Metropolitan Magistrate Court. Esplanade. Bombay (Asstt. Collector of Customs vs. Ramaiah Pillai Mylvaganam).

3. One Ramaiah Pillai Mylvaganam, a Srilankan National, came to Bombay from Bahrain by flight GF 042 on its way to Singapore. On his arrival at Bombay airport, he was sitting in the transit lounge. Officers of the Air Intelligence Unit, on secret information, intercepted Shri Ramaiah and. while taking a search of his hand-baggage before Panch witnesses, the Air Intelligence Unit recovered 30 gold bars of 10 tolas each of foreign origin, totally weighing about 3,490 gms. The said gold was valued at Rs. 8,22,030/- in the international market and at Rs. 12,06,810/- in the local market. Shri Ramaiah had kept the said gold in a pouch wrapped in his old clothes inside the hand-baggage. The said gold was seized under a Panchanama dated 5-9-1990 under reasonable belief that the same was smuggled into India and hence liable for confiscation under the provisions of the Customs Act, 1962. Shri Ramiah, in his statement recorded under section 108 of the Customs Act, stated that the gold under seizure was given to him at Bahrain by one A. Rauf Mohamed for delivery in the transit lounge of the Bombay airport to a contact person known as Wellington who will come and identify himself by that name. He further stated that he had an agreement with one Sahal Hameed at Colombo for this transaction. He further stated that he was carrying the said gold for a monetary consideration of 5,000 Srilankan rupees in addition to 100 Dhirams and 100 Singapore Dollars. It is not necessary to set out about the adjudication proceeding in which the gold came to be seized and a personal penalty of Rs. 75,000/- was levied, which amount is yet to be recovered.

4. On 6-9-1990, Ramaiah was produced before the Court by the Customs Department seeking remand. Remand was granted. We were told by Shri Gupte, learned counsel appearing on behalf of the Customs Department, that after two or three remands, the Accused was granted bail on 10-9-1990. The bail order, apart from being cryptic, is even difficult to read. A major portion of the said order save and except Item No. 7 reads as under :-

"C. D. only of Rs. 9 lacs with condition to report daily with the Asstt. Collector at 11 a.m.

(Note : With all difficulties, we could read the aforesaid order, but we are not very sure whether we have reproduced the aforesaid order correctly)."

Sum and substance of the order appears to be that the Accused was released on bail of Rs. 9,00,000/- cash deposit with a condition to report to the Assistant Collector of Customs at 11a.m. This order of the learned trial Magistrate was challenged in the High Court and this Court on 1-10-1990 passed the following order :-

"Heard Mr. C. R. Nirani for the petitioner and Mr. C. T. George for Respondent No. 1. Perused the papers. In the circumstances the following order is passed :

Petitioner is released on bail of Rs. 4,00,000/- with one surety in the like amount on condition that he will report to 1st respondent every day between 11 a.m. to 2 p.m. and also attend Court on the given date. Failure on the part of petitioner to observe the above conditions, the bail order shall stand cancelled.

Petitioner to give his local address to respondent No. 1."

Pursuant to this order, one Vasant Eknath Ghuge stood surety and on 11th October 1990 submitted a surety application. On .the same day. i.e.. on 11-10-1990, it appears that the Magistrate passed the following order :-

"Accepted provisionally.

Dept. to verify and report till 22-10-1990.

Issue E.W."

Pursuant to the aforesaid order, bail bond in the prescribed Form No. 45 was completed on 12-10-1990. It was signed by the Accused and the surety. On 15-10-1990. the learned Chief Metropolitan Magistrate passed the following order on surety's application as under :-

"Forwarded with compliments to the Asstt. Collector of Customs. Bombay for verification and report on or before 22-10-1990."

Form No. 45. which is called a "bond and bail bond", the learned trial Magistrate passed an order and the relevant portion reads as under :-

"Accepted provisionally till 16-10-1990."

The Accused availed of the bail on 12-10-1990 pursuant to the order after complying with the formalities of bail bond (Form No. 45).

5. It appears that there was delay on the part of the Customs Department to cause verification and submit report on or before 22-10-1990. The Customs Department asked for four months' time and, accordingly, bail was extended till 6-2-1991. In between, the matter appeared on board as per the dates given to the Accused. On 22-10-1990 and 3-11-1990. the Accused did not remain present. On 7-11-1990, the Assistant Collector of Customs submitted his report stating that the Accused and his surety did not come forward for verification of property. Hence they could not submit the verification report. At that stage, it transpired that the Accused had absconded and he could not be served with the summons. When the surety was sought to be pinned down in terms of the surety application/surety bond, it was contended by him that's surety was accepted provisionally till 16-10-1990 and that after the expiry of the said period, he cannot be held liable on the basis of the said surety bond. The net result, therefore, is that on the basis of the surety bond executed by Vasant Ghuge.on 11-10-1990, which was provisionally accepted by the Court on 12-10-1990, the Accused availed the bail and now absconded. The defence of the surety is that his bail bond was provisionally accepted till 16-10-1990. After the expiry of the said date. the bail bond cannot be enforced against him. It is in these circumstances that we are constrained to lay down certain guidelines in accordance with the provisions contained in Chapter XXXIII of the Code.

6. After going through the papers with the assistance of Shri Gupte, learned counsel appearing on behalf of the Customs Department, and Shri Page. the learned Public Prosecutor, we are simply amazed to see the record maintained in the Magistrate's Court. Apart from serious procedural defects in not following the provisions of Chapter XXXIII of the Code. somewhat loosely worded rubber stamp orders were passed on the bail bonds and, consequently, such orders helped the Accused to abscond and sureties to get themselves discharged without an order of the Court under section 444 of the Code. Some of the orders are in the handwriting of the Magistrate. It is difficult to read the orders. Some of the formalities which were required to be strictly complied with were overlooked by the staff and the Presiding Officer. No remedial measures were taken. Shri Gupte, who usually appears for the prosecutions launched by the Customs Department, rightly urged that unless some effective guidelines are laid down by this Court, the omission and/or commission in matters of bail will not be rooted out.

7. Before we lay down the guidelines, we deem it necessary to reproduce certain relevant provisions contained in Chapter XXXIII of the Code. Chapter XXXIII of the Code deals with the provisions as to bail and bonds. In the present case. we are concerned with the provisions contained in sections 441, 442, 443 and 444 of the Code. Section 441 of the Code provides for bond of accused and sureties and it reads thus :-

"441. (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.

(2) Where any condition is imposed for the release of any person on bail. the bond shall also contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an enquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness."

8. Section 442 of the Code deals with discharge from custody after execution of the bond. Section 443 of the Code deals with the power of the Court to order sufficient bail when the first surety was found insufficient. Section 443 of the Code reads thus :

"443. If, through mistake, fraud, or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and, on his failing so to do, may commit him to jail."

9. Section 444 of the Code deals with the discharge of sureties and we may reproduce the same :

"444. (1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.

(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.

(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail."

10. If the scheme of sections 441, 442, 443 and 444 of the Code is perused, it is clear that unless a valid bond of the Accused and surety is obtained in terms of the order, the Accused cannot be released on bail. In the present case, we are concerned with economic offences, which have not only adversely affected our national economy seriously but have caused tremendous pressure on the Courts due to the volume of the activities of such economic offenders. From the orders referred to hereinabove, it appears that while accepting the sureties and releasing the Accused, no proper care was taken and by reason of some defects in the surety bond and the orders, the Accused and sureties were benefited. Take for instance the order dated 11-10-1990 on the surety application (page 14 of the compilation), which reads as under :-

"Accepted provisionally. Dept. to verify and report till 22-10-1990. Issue E.W."

There may not be any serious defect in accepting surety application provisionally since enquiry is required to be made as regards the property of the surety, which is the subject-matter of the surety bond. When the bonds were executed by the Accused and the surety, an order was made "Accepted provisionally till 16-10-1990". Acceptance of surety bonds provisionally for a limited period is illegal. We fail to understand why such an order of accepting the bond provisionally till 16-10-1990 should have been passed. It amounts to discharge of the surety after 16-10-1990. Section 444 of the Code is the only section which deals with discharge of sureties. The effect of the order dated 11-10-1990 accepting surety bonds provisionally till 16-10-990 was interpreted to mean that the bail bonds were valid only till 16-10-1990. Taking advantage of this type of orders in Customs matters, sureties contend that their surety bond has come to an end and they are no more liable in terms of the bond. On release of the accused particularly foreign nationals on bail, they abscond and resultantly their presence becomes almost impossible. As far as section 444 of the Code is concerned, it lays down the procedure as to how discharge of sureties can be granted. It is only in terms of this section 444 of the Code that discharge of sureties can be granted by the Court. Whenever a surety is discharged under section 444 of the Code, it is necessary for the Court to pass an order of discharge the surety after following the provisions of the said section. In the matters of this nature, provisional bond may be executed because investigation and verification of the property, which is the subject-matter of surety bond, is yet to be made by the Customs Department and pending such verification report the surety cannot be allowed to be discharged until an express order under section 444 of the Code is made by the Court. Shri Gupte and Shri Page drew our attention to various irregularities and at times illegalities committed by the Court and the staff members which help the accused to abscond and enable the surety to get discharged. Shri Gupte urged that advocates for the accused often press into service the reported decision of the Supreme Court in Free Legal Aid Committee vs. State of Bihar, 1982 Cri.L.J. 1943, to secure a bail in such matters. We may, therefore, consider first the decision of the Supreme Court. The Supreme Court for want of time gave certain interim directions in the matter of grant of bail. Shri Gupte was unable to tell us as to what is the final judgment and order in this reported matter. The facts of this reported judgment are that the Free Legal Aid Committee, Jamshedpur approached the Supreme Court on behalf of several Accused persons from the State of Bihar who were released on bail. A grievance was made before the Supreme Court that on every 14 days the Accused was required to attend the Court, even though he was on bail, and this caused considerable harassment to the Accused. Learned counsel for the petitioner also urged that until a chargesheet is filed and process is issued by the Court, there is no reason for the Accused released on bail to appear before the Court every 14 days. Probably realising the harassment and the difficulties faced by such accused persons, Shri Bhagat, learned counsel appearing on behalf of the State of Bihar, fairly conceded that the law does not require that the accused on bail need to appear in the Court before a chargesheet is filed and process is issued by the Court. It is in these circumstances the Supreme Court observed as under:-

"We, therefore, direct that whenever an accused is released on bail he need not be required to appear before the Court until the charge-sheet is filed and the process is issued by the Court."

These observations, in our opinion, were made by the Supreme Court on the peculiar facts of that case. The alleged offences were under the Indian Penal Code. The very next few lines of the said judgment are material and they read thus:-

"There is also another difficulty pointed out by Mr. Sibal and it is that in cases triable by the Court of Session, the practice followed is that when an accused is released on bail by the Magistrate, the bail is granted to him only during the pendency of the inquiry before the Magistrate, with the result that when the case is committed to the Court of Session, he is rearrested and brought before the Court of Session where he has to apply once again for fresh bail. This causes considerable inconvenience to the accused without any corresponding advantage so far as the administration of criminal justice is concerned."

The Supreme Court then went on to observe :-

"We, therefore, feel that it would avoid hardship to an accused if the Magistrate, while releasing the accused on bail. requires execution of a bond with or without surety, as the case may be, binding the accused not only to appear as and when required before him but also to appear when called upon in the Court of Session."

In our opinion, this judgment may help the accused to plead that they may not be required to attend the Court on each date fixed before the Court until the chargesheet is filed, but. at the same time. the Supreme Court has added a rider that the accused and surety must execute a bond with or without surely, as the case may be, binding the accused and his surety to appear before the Court as and when required by the Court. It is this rider which is required to be observed very strictly by the Court while releasing an accused on execution of his bail bond with or without surety.

11. It may also be pointed out that the Supreme Court order is substantially based upon the concession made by Shri Bhagat, who appeared for the State of Bihar. From the report, it appears to us. with great respect, that the provisions of section 441 of the Code were not brought to the notice of the Court. Under sub-section (1) of section 441 of the Code. it is the duty of the Court that when an accused is released on bail on executing bond with one or more sureties or without sureties upon a condition that such person shall attend at the time and place mentioned in the bond, he shall continue so to attend until otherwise directed by the Police Officer or the Court as the case may be. In a given set of facts, it may be open to the Accused to request the Court to exempt him from appearance on the subsequent dates. In our opinion, true spirit behind this reported judgment is to eliminate hardship and harassment to the accused.

12. Having considered the arguments advanced before us and after having noticed procedural defects in the order passed by the Magistrate's Court involving economic offenders, we lay down the following guidelines on the basis of the provisions contained in Chapter XXXIII of the Code :

i) At the time when a remand application is made by the Prosecution and if the accused applies for bail in the said application or by a separate application, the Court will have to consider the bail prayer on merits.

ii) If the Court, on merits, opines that the accused be released on bail, it shall pass appropriate orders bearing in mind the offender's nationality, complicity and the likelihood of a foreign offender jumping the bail.

iii) Hand-written orders must be clear and readable. Rubber stamp orders be avoided.

iv) Surety applications must be scrutinized carefully. A professional surety be avoided. The Magistrate may, if necessary, put questions to the surety to ascertain the genuineness to avoid impersonation. The surety needs to be a bona fide one and not for any other consideration.

v) On the surety application, a photograph of the surety be affixed and such photograph must be identified by the advocate, if he is so represented, or by any other authorised person. The advocate who identifies the surety mast give his full residential and/or office address with Bar Council enrolment number. Provisions of section 441 of the Code must be strictly complied with.

vi) In the matters of economic offenders, bail amounts are usually high. Consistent with the bail amount, the surety is required to offer his property by way of security. At the stage of accepting the bail bond. it may not be possible for the Customs Department to verify the property of the surety and for that purpose the bail bond may be accepted provisionally.

vii) Order must expressly state that the bail bond is accepted provisionally pending verification of the property by the Customs Department and bail bond shall remain in force until a final order of accepting the surety bond is passed by the Magistrate.

viii) The Magistrate must also take care that bogus and professional sureties are not accepted. A surety register must be caused to be maintained uptodate and the concerned officer of the Court must certify that the name of the surety does not appear in the register. On completion of this procedure, the Magistrate will consider the acceptance of such surety, even provisionally.

ix) The Chief Metropolitan Magistrate to instruct the Registrar/Additional Registrar of all the Magistrates' Courts that a surely register must be maintained uptodate and alphabetically. The concerned officer-in-charge of the surety register to make correct endorsement on the surety application indicating as to whether such person had stood surety in the past or not.

x) The Customs Department when asked to verify the property offered by the surety in his surety application and surety bond. such verification must be submitted to the Court as per the directions of the Court. The Customs Department must also ensure that the verifying person of the Department files his certificate. The verifying officer of the Customs Department will physically verify all the necessary details, including the name, address, genuineness of the surety as well as the property offered as surety.

The Court must insist that the property, movable or immovable. offered by way of surety has got a marketable title and the same is free from encumbrances. An agreement of sale in respect of property does not convey any title and, therefore, such property cannot be accepted as surety. The surety must also file an affidavit indicating that the property which he has offered by way of security has a marketable title and it is free from any encumbrance.

xii) If it is brought to the notice of the Court that the Court staff is making endorsements on the surety applications without verifying the surety register, the Magistrate to take immediate action against such erring staff member without any delay.

xiii) As far as solvency certificates offered by the sureties are concerned, the Magistrate must satisfy himself about the correctness and genuineness of such solvency certificates and, if any doubt is entertained, he must call upon the issuing authority to satisfy the Court.

xiv) When the accused is released on bail on cash deposit with one or two sureties and later on if an application is made to permit him to offer sureties by modifying the order of cash deposit, the Magistrate shall give notice to the sureties and put the sureties on guard about the consequences of such modification. The Magistrate must not pass an order of modification of the cash deposit unless he opines that the sureties which are already offered are sufficient in terms of the bail order. If the sureties are found insufficient, the Magistrate will call upon the accused to offer further sureties to make good the amount of. Cash deposit.

xv) The Magistrate may impose a condition in the bond consistent with section 441 of the Code requiring the accused to attend at the time and place mentioned in the bond and shall continue to attend until exemption is granted by the Court. In the case of an accused being a foreign national, full particulars of the accused, original place of residence, etc., shall be furnished to the Court by the accused. Customs Department may verify correctness thereof. The Customs Department to keep the Embassy of that country, if available, informed about the pendency of the proceedings in the Court.

xvi) If it is brought to the notice of the Court that either the accused or the surety has committed breach of any of the conditions mentioned in the bond, the Court will take immediate action against such erring person in accordance with law.

In case of impersonation by the surety or the accused who has been identified by the advocate, the Court, apart from taking any action against the advocate in accordance with law, will refer the matter to the Bar Council of Maharashtra for appropriate action.

It is desirable that the Customs Department is equipped with a computerised list of sureties so that they would be able to assist the Court.

xix) If it comes to the notice of the Court that any mischief is committed by the accused, surety or any other person who is the officer of the Court, including the advocate, the Court will take immediate action against such erring person in accordance with law.

xx) The Customs Department shall cause a photograph of the accused and surety being affixed on the bail application and bond to avoid impersonation.

xxi) In most of the cases under the Customs Act, it is noticed that the accused and sureties offer cash deposits and/or immovable property of substantial value. It is open to the Customs Department to forward the information to the Income-tax Department and/or any other authority for information.

13. The Magistrates who are concerned with the cases of economic offences will be more cautious in dealing with the accused and sureties.

14. In the result, Criminal Suo Motu Revision Application No. 3 of 1992 to stand disposed of in terms of the above directions.

15. Criminal Suo Motu Revision Application No. 2 of 1992 also stands disposed of in terms of the above judgment.

16. The Chief Metropolitan Magistrate is directed to circulate a copy of this order to all the Metropolitan Magistrates in Bombay for their information.

17. The Registrar of this Court to circulate a copy of this judgment to all the District and Sessions Judges in Maharashtra who will, in turn, circulate it to the Magistrates subordinate to them.

18. Before we part with this judgment, we must place on record our appreciation for the valuable assistance rendered by Shri A. R. Gupte, learned counsel appearing on behalf of the Customs Department, and Shri S. G. Page, the learned Public Prosecutor.

Order accordingly.