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Criminal Miscellaneous Application No. 44 of 1967, decided on 16th June 1969.

S. 561‑A read with S. 499‑Surety‑‑‑Magistrate directing verification of surety's solvency under procedure laid down in circulars and directions issued by District and Additional District Magistrates from time to lime‑Such circulars and directions, held, being wholly outside provisions of Code interfere with judicial functions of Courts‑Order passed on basis of such circulars arid directions quashed as illegal.

On a plain reading of section 499 of the Criminal Procedure Code two conditions are necessary before any person is released on bail or released on his own bond. These are, firstly, that he must execute a bond for such sum of money as the Court may think sufficient and secondly, that, a bond has to be executed 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 Court. In other words, it is the Court which has to determine the sufficiency of the bond as well as the sureties. This determination must be a judicial determination as the function of granting bail is a judicial function and not an administrative one. There cannot be any two opinions on this question. The execution of the bond by surety is a simple contract executed between the Court and the surety whereby the custody of the person is given to him and for his production in Court according to the terms of the bond. It is, therefore, implied that such surety must be a person competent to contract and that further he must be also possessed of the amount of the bond before he can be regarded as a fit person to stand surety. Thus, the word 'sufficient' would include not only the solvency of the person offering himself as the surety but also his fitness to enter into a contract. When a person offers to stand surety and submits his documents for verification it is for the Court to determine his solvency and his fitness for standing as surety for that person. The Magistrate cannot act on the opinion of another authority, such ac the City Deputy Collector. The judicial function necessarily implies that it must be his own judgment and not that he could act otherwise. There is, therefore, no jurisdiction to act on the circulars and directions issued by the District Magistrate or the Additional District Magistrate. Such directions are wholly outside the scope of the provisions of the Code and interfere with the judicial functions of a Court.

Emperor v. Bnnorasidas I L R 37 Nag. 168 and Muhammad Sarwar v. The State P L D 1965 Pesh. 14 rel.

Hay Nawaz Raja for Applicant.

Manzoor Hussain for the State.

Khawaja Adeel Ahmed : Amicus curiae.

Date of hearing : 10th June 1969.

By this application filed under section 561‑A, Cr. P. C. the applicant has sought to question the legality of the order of the learned Sub‑Divisional Magistrate, Harbour, Karachi dated the 2nd of February 1967, by which he has directed the verification of the solvency of one Shaikh Muhammad Din who had agreed to stand surety for the applicant in a case pending before the learned Sub‑Divisional Magistrate, Harbour, Karachi, in respect of offences under sections 147, 332, 336 and 188, P. P. C.

2. The facts relevant for the purposes of decision of this application are these: On 31‑1‑67 at about 9 p.m. about 40 or 50 persons who had assembled at the Nashtar Park amongst a large gathering in a "Seerat Conference" had created disturbance and had stoned the officials who had assembled for maintaining law and order. The applicant was one of the 10 persons who were arrested the same day at about 9‑45 p.m. On 2nd February 1967, the applicant was granted bail in the sum of Rs. 10,000 by the learned Sub‑Divisional Magistrate, Harbour, Karachi. Although all the offences were bailable yet on the consideration of the fact that the case was important one and that as it was likely that the applicant would abscond; therefore, a heavy sum was determined as the amount of bail. On tile same day, Shaikh Muhammad Din offered to stand surety for the applicant and submitted his affidavit. The learned Sub‑Divisional Magistrate by another order dated 2nd February 1967, directed that the affidavit by submitted to the Additional District Magistrate, Karachi, for verification of the solvency through the City Deputy Collector. The applicant has filed this application as aforesaid to question the legality of this order.

3. From the relevant circulars as submitted by the District Magistrate, Karachi, it appears that an order dated 9^th November 1956, to the effect that the solvency of the surety should be verified by the City Deputy Collector was passed by the then City and A. D. M., Karachi. Thereafter on 13^th November 1958, another circular was addressed to all the City Magistrates, Karachi by the then City and A. D. M., Karachi, to this effect. Again, in a meeting of Police Officers and Magistrates held in the office of the District Magistrate, Karachi, on Ali June 1966, it was decided that all affidavits of sureties i n excess of the amount of Rs. 3,000 should be referred to the City Deputy Collector for verification of the solvency.

4. These circulars were issued because according to the City and A. D. M. bogus sureties were being accepted by Courts and that with a view to avoid the acceptance of insufficient sureties as to their fitness as well as their solvency, this was considered as a necessary step before the sureties were finally accepted by the Courts.

5. The order dated 2nd February 1967 was passed in pursuance of these circulars.

6. The point for determination, therefore, now is as to whether the learned Sub‑Divisional Magistrate was legally competent to refer the affidavit of surety for verification of solvency to the City Deputy Collector in view of section 499, Cr. P. C. The learned counsel for the applicant in support of his contention that the learned Sub‑Divisional Magistrate could not in law delegate his function of ascertaining the solvency of the surety, has relied on decisions as reported in I L R 37 Nag. 168, A I R 1922 All. 541 and P L D 1965 Pesh. 14. There is no decision of any High Court in Pakistan directly on the point.

7. It will be convenient here to reproduce section 499, and the other relevant provisions of the Code of Criminal Procedure and the instructions contained in the Circulars for the guidance of the criminal Courts :‑

"499.‑(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) 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.

501. 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.

514‑A. When any surety to a bond under this Code becomes insolvent or dies, or when any bond is forfeited under the provisions of section 514, the Court by whose order such bond was taken, or a Magistrate of the First Class, may order the person from whom such security was demanded to furnish fresh security in accordance with the direction or the original order, and, if such security is not furnished, such Court or Magistrate may proceed as if there had been a default in complying with such original order.

Relevant paras. of the Federal Capital and Sind Courts Criminal Circulars.

16. When a Court orders the release on bail of an accused person, with surety or sureties, every person offering himself as surety shall produce satisfactory evidence, such as title deeds, a certified copy of an extract from the Record‑of‑Rights, De posit Receipt, Government Promissory Notes or other evidence of title to property, movable and immovable, of his solvency to the extent of the amount for which belt is to be given, and shall be examined in the case of a Court of Sessions by the Accountant and in other cases by the Nazir or Sheristedar of the Court, on oath or solemn affirmation, touching the value of iris property and the debts and liabilities to which the said property is subject. After being examined the papers shall be placed before the Court of directions as to whether the surety be accepted and if the Court directs that the surety be accepted the surety shall make and file his affidavit of justifi cation and sign the bond:

Provided that, in cases where the amount of the bond does riot exceed Rs. 500, the Accountant of a Court of Session may be permitted to accept a surety without reference to the Court.

Bail or recognizance bonds should be executed in the presence of the Magistrate as ordered in Government, Home Depart ment, letter No. O‑900‑H‑/38 dated the 9th March 1939. The persons executing such bonds should be informed that no payment is to be made therefor and they should be told to leave the Court premises immediately after the execution of the bonds. (See Government of Sind, Home Department, Circular No. 1442‑H./39, dated the 9th June 1939).

17. Affidavits of justification shall be deemed insufficient unless they state that each person justifying is worth the amount required by the Court over and above what will pay his just debts and over and above every other sum of which be is the surety, and that his property is unincumbered.

18. The title deeds, referred to above, tray relate to immovable property situate beyond the local limits of the ordinary jurisdiction of the Court, but shall in all cases be in the name of the proposed surety.

19. Unless the Court otherwise orders, a pleader or am Advocate practicing within the local limits of the ordinar y jurisdiction of the Court, a clerk of such pleader or Advocate or a partner, a clerk or other employee of any person tendering security, or of ,any person proposed as surety shall not be accepted as surety to a bond.

20. No person other than the accused or his Advocate the surety and his Advocate and the person representing the Crown in the proceedings in which bail has to be given. shall be present at the examination of any‑ surety by the Nazir or Sheristedar or the Accountant of the Court, as the case may be."

8. Apart from section 499, Cr. P. C. there is no other provision which deals with this subject. However, it will be found that in section 122, Cr. P. C. there is a procedure prescribed for ascertaining solvency of tire surety in cases where a person is ordered to execute a bond for good behaviour with sureties in accordance with section 118, Cr. P. C. The answer to the above problem ha, to be found from section 499, Cr. P. C. On a plain reading of this section two conditions are necessary before arty person is released on bait or released on his own hand. These are, firstly, that lie must execute a bond for such sum of money as the Court may think sufficient and that. secondly, a bond has to be executed by one or more sufficient: sureties conditioned that such person shall attend at the time and place mentioned in tile bond and shall continue so to attend until otherwise directed by the Court. In other words, it is the Court which hat; to determine the sufficiency of tile bond as well as the sureties. This determination must be a judicial deter mination as the function of granting bail is a judicial function and not in administrative one. There cannot be any two opinions oil this question. In I L R 37 Nag. 168, the same, View was taken which found support from a decision of the Queens Bench Division as reported in the case of Linford v. Fitzroy ((1849) 13 Q B 240). Once it is held that it is a judicial function then it necessarily follows that the learned Magistrate must also, upon the material placed before him, come to the conclusion as to the sufficiency of the sureties as well. The execution of the bond by surety is a simple contract executed between the Court arid the surety whereby the custody of the person is given to him and for his production in Court as according to the terms of the bond. It is, therefore, implied that such surety must be a person competent to contract and that further he must be also possessed of the amount of the bond before he can be regarded as a fit person to stand surety. Thus, according to rue, the word sufficient' would include trot only the solvency of tile person offering himself as the surety but also his fitness to enter into a contract. Khwaja Adil Ahmad, who had appeared as amicus curiae, had attempted to argue that the word sufficient' only implies the amount of the bond and that since no inquiry was held in the case of the person executing the bond, hence no inquiry was contemplated also in regard to the solvency or fitness of the surety, because sufficient' in tile context of the bond merely referred to the amount determined and that the same meaning should be given to the word sufficient' occurring before the word sureties'. This argument was based on the principle of interpretation that if two words were used in the same section they must have the same meaning. It may be true as a matter of principle, but here the position between an accused and the sureties is altogether different There are other basic requirements which a surety must hold before he can be accepted as a surety and to this extent I am of the view that the word sufficient' as prefixed before the word sureties' has a different connotation in view of what has been observed above. Khwaja Adil Ahmad, however, and not puruse this point any further but agreed that the word sufficient"' would include the other things as well. When he was con fronted with the position as aforestated and he readily gave up this plea.

9. When a person offers to stand surety and submits his documents for verification it is for the Court to determine his solvency and his fitness for standing as surety for that person. The learned Magistrate cannot act on the opinion of another authority, such as the City Deputy Collector. The judicial function necessarily implies that it must be his own judgment ands not that he could act otherwise. It is pertinent here to reproduce a passage from the decision as quoted in Emperor v. Banarasidas (I L R 37 Nag. 168) :‑

"Judicial acts can only be performed by Courts having seisin of the proceedings, and the Chief Presidency Magistrate is not seised of them in this case. If he does not act in a judicial capacity, then in the absence of some special rule enabling him so to act, his position can only be that of a private agent asked to perform a ministerial function for the Magistrate who has seisin of the matter. But if the Magistrate is entitled thus to delegate his powers on general principles, then why should his choice be restricted to that of another Magistrate, or even to another official. Provided he is prepared to trust the man, surely it can be any body; a friend across the street, or even a stranger of whom he has heard at the other end of India. This would be a dangerous doctrine to introduce in criminal matters and yet when pushed to its logical conclusion the argument can mean nothing else.

Then again how is the Chief Presidency Magistrate to be approached There are no rules on the subject, and there is no procedure prescribed. It would ultimately have to be by a private letter (however much it might bear the outward indtcia of officialdom), asking him to do this as a favour, and he would have every right to refuse; and undignified position for a Court of Justice to find itself in, to say the least." Again on the same page another passage appears as under :‑

"So also, the Magistrate is bound to accept. the sureties produced, provided they are properly identified, and are solvent and reliable."

Another passage although in the context of section 122, Cr. P. C. as appearing in the judgment reported in Muhammad Sarwar v. The State (P L D 1965 Pesh. 14) is also to the same effect:‑‑‑

"It will be manifest from the language of the above provision that the practice of requiring the Tehsildar to attest the security bonds or requiring the police to report on the suitability or otherwise of the surety to the bond is not at all envisaged by the said Proviso, but on the other hand it makes it obligatory on the Magistrate that he shall himself hold an inquiry on oath into the fitness of the surety or cause such inquiry to be held lad a report to be made thereon by a Magistrate subordinate to him."

Although no procedure for holding an inquiry is prescribed in section 499, Cr. P. C., yet I am of the view that the determination of the sufficiency involves the examination similar to that of an inquiry as is prescribed in section 122, Cr. P. C. and that, therefore, these observations will also apply with equal force. Thus if the Magistrate is unable to come to the conclusion that the surety is a fit person he would be justified in rejecting the surely and asking for another fresh surety. In case if he accepts a surety and it transpires that a surety has been wrongly accepted because of mistake, fraud or otherwise, then he is empowered under section 501, Cr. P. C. to order for the arrest of that person and further to direct him to find other sufficient surety. If the surety becomes insolvent or dies, the Court can still under section 514‑A direct that person to furnish fresh security. There is, therefore, no justification to act on the Circulars and directions issued by the District Magistrate or the Additional District Magistrate. Such directions are wholly outside then scope of the provisions of the Code and interfere with the judicial functions of a Court. The learned Sub‑Divisional Magistrate should have disregarded the said circulars. Further, if the learned Sub‑Divisional Magistrate had cared to see paras. (16) to (20) of the instructions as contained in the circulars issued by the High Court for the guidance of the criminal Courts he would have found out a procedure laid for the acceptance of the surety. The upshot of the above discussion is that the directions and the circulars as issued by the Additional District Magistrate and the District Magistrate are wholly without jurisdiction and they tend to interfere with the judicial functions of a Magistrate. Any order passed on the basis of these directions is illegal and is of no effect as it finds no support. from any provision of the Code of Criminal Procedure. The impugned order dated 2nd February 1967 is, therefore, illegal and is accordingly quashed. Tire petition is accordingly accepted. Petition accepted.

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