Anbarasan Devar vs State

S. Nagamuthu, J.—Whether a Probation Officer appointed under the Probation of Offenders Act, 1958 can be directed by a Court or a Judicial Magistrate to enquire into the character, conduct or the other details of a person, who offer himself as surety for the release of an accused, who has been granted bail in a criminal case" is the question involved in this petition.

The petitioner is the accused in Crime No. 37 of 2008 on the file of the respondent police for alleged offences under Sections 507 and 509 I.P.C read with Section 4 of the Tamil Nadu Prohibition of Women Harassment Act, 2002. He was arrested by the respondent police and later on, the learned District Munsif cum Judicial Magistrate, Keeranur by an order dated 15.03.2008 in Crl. M.P. No. 900 of 2008 granted bail to the petitioner. In the said order, the learned Magistrate has directed the release of the petitioner on execution of a personal bond with two sureties each for a like sum of Rs. 10,000/-. In the same order, the learned Magistrate has further directed that the permanent residence and the character of the persons, who offer themselves as sureties, shall be verified by the Probation Officer. The petitioner challenges the said condition viz., the direction for verification of the permanent residence and the character of the sureties by the Probation Officer.

Before going into the other details of the case, it is worthwhile to refer to the relevant provisions of the Code of Criminal Procedure relating to Sureties. Section 441 of Cr. P.C. reads as follows:-

Bond of accused and sureties:- (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 inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness.

441-A, Declaration by sureties:- Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.

A close reading of sub-clause (4) of Section 441 of Cr. P.C. would go to show that for the purpose of determining whether the sureties are fit or sufficient, the Court has two options before it viz., either to accept the affidavit in proof of the facts contained therein relating to the sufficiency or fitness of the sureties or the Court may in appropriate cases hold an enquiry itself or cause an enquiry to be made by a Magistrate subordinate to the Court regarding the sufficiency or fitness of the sureties. This provision does not empower the Magistrate to direct an enquiry to be held by a Probation Officer. A plain reading of the above said clause would make it manifestly clear that either the Magistrate or the Court before which the sureties stand shall enquire or may direct any Magistrate, who is subordinate it to hold the said enquiry.

Now, it is necessary to refer to the provisions of the Probation of Offenders Act, 1958 dealing with his powers and duties. Section 2(b) of the Act defines the term "Probation Officer", which is as follows:

(b) "Probation Officer" means an officer appointed to be a probation officer or recognized as such u/s 13.

Section 13 of the Act speaks of the appointment of Probation Officer and Section 14 of the Act provides for duties of the Probation Officer. Section 14 of the Act reads as follows:-

Duties of Probation Officer:- A probation Officer shall, subject to such conditions and restrictions, as may be prescribed, -

(a) inquire, in accordance with any directions of a Court, into the circumstances or home surrounding of any person accused of an offence with a view to assist the Court in determining the most suitable method of dealing with him and submit reports to the Court.

(b) supervise probationers and other persons placed under his supervision and, where necessary, endeavour to find them suitable employment;

(c) advise and assist offenders in the payment of compensation or costs ordered by the Court;

(d) advise and assist in such cases and in such manner, as may be prescribed, persons who have been released u/s 4 and

(e) perform such other duties as may be prescribed.

Similarly, Rule 20 of the Tamil Nadu Probation of Offenders Rules, 1962 deals with other duties of Probation Officer, which is as follows:-

Other duties of Probation Officer:- The Probation Officer may also undertake the following functions:-

(1) Educating the public and mobilizing support for the probation system;

(2) mobilizing public assistance and co-operation in the field of social defence;

(3) being in charge of any institution or other premises referred to in Rule 31 that may be assigned;

(4) any other duties of cognate nature which may be assigned by order of the State Government;

A conjoint reading of the above two provisions would go to show that the duties of the Probation Officer are only to the extent enumerated in Section 14 of the Act and Rule 20 of the Rules. Nowhere in these two provisions any thing has been said about power of the supervision or enquiry or verification of the antecedents, character and the fitness of persons other than offenders by the Probation Officer. Thus, going by the plain reading of these two provisions, I have no difficulty in holding that the Probation Officer cannot be directed by any Criminal Court including Judicial Magistrates to enquire into the fitness or sufficiency of a surety and to submit a report to him.

Now, let me analyse various judgments cited at the bar. In the decision reported in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, the Hon'ble Supreme Court has held as follows:-

The enquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. We have no doubt that if the system of bail, even under the existing law, is administered in the manner we have indicated in this Judgment, it would go a long way towards relieving hardship of the poor and help them to secure pre-trial release from incarceration.

In the decision reported in Moti Ram and Others Vs. State of Madhya Pradesh, the Supreme Court has held as follows:-

A semantic smog overlays the provisions of bail in the Code and prisoners'' rights, when cast in ambiguous language become precarious. Where doubts arise the Gandhian talisman becomes a tool of interpretation: "Whenever you are in doubt... apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him". Law, at the service of life, must respond interpretatively to raw realities and make for liberties.

It shocks one's conscience to ask a mason like the petitioner to furnish sureties for Rs. 10,000/-. The Magistrate must be given the benefit of doubt for not fully appreciating that our Constitution, enacted by "We, the people of India", is meant for the butcher, the baker and the candle -stick maker - shall we add, the bonded labour and pavement dweller.

To add insult to injury, the magistrate has demanded sureties from his own district! (We assume the allegation in the petition). What is a Malayalee, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies. What law prescribes sureties from outside or non-regional language applications? What law prescribes the geographical discrimination implicit in asking for sureties from the Court district? This tendency takes many forms, some times, geographic, sometimes linguistic, sometimes legalistic. Art. 14 protects all Indian qua Indians, within the territory of India. Art. 350 sanctions representation to any authority, including a Court, for redress of grievances in any language used in the Union of India. Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland. Swaraj is made of united stuff.

In the decision reported in State of Rajasthan v. Lalsingh (1987 Crl.L.J. 269), a single Judge of Rajasthan High Court has held as follows:

If the personal bond and surety bonds are furnished and affidavit is filed by the surety about his status, generally the same should be accepted. If the Court has any doubt, then the proper course is to accept it as an interim measure, release the accused and then send it for verification and if on verification the status of surety is found less, then the accused should be called upon to furnish fresh surety in the amount for which he has been ordered to furnish.

Keeping in view the observations of the Hon'ble Supreme Court and the Rajasthan High Court as extracted above and also having analysed the provisions of the Code of Criminal Procedure and the Probation of Offenders Act, I am of the considered opinion that no Court including a Magistrate has any power to order an enquiry to be held by Probation Officer with reference to the fitness or sufficiency of the sureties. The Probation Officer has got neither duty nor power to enquire into the character, conduct and related matters in respect of persons who are not offenders. I am informed by the Bar that in many Courts in this State, the practice of directing the Probation Officers to enquire into the sufficiency and fitness of the sureties is followed and in the result until such report is received the accused are made to languish in jails. It is really shocking as the same is against the fundamental rights guaranteed under the Constitution of India.

For all the above reasons, this petition is allowed and the impugned order dated 15.03.2008 of the learned District Munsif cum Judicial Magistrate, Keeranur in Crl. M.P. No. 900 of 2008 directing the sureties to be verified by the Probation Officer is set aside. It is made clear that in future the criminal courts in the State would do well in strictly adhering to the provisions of law quoted above and also will have regard for the personal liberty of individuals while dealing with such matters relating to bail.