Shaheen Saifi And Another v. State Of Haryana And Another

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Decided on : 25.09.2024 SHAHEEN SAIFI AND ANOTHER . . . Petitioners

Versus

STATE OF HARYANA AND ANOTHER . . . Respondent CORAM: HON'BLE MS. JUSTICE KIRTI SINGH

Present:

Mr. Gaurav Gupta, Advocate for the petitioners.

**** KIRTI SINGH, J. (Oral) The present petition has been filed under Section 482 of Cr.P.C. is for quashing of impugned order dated 29.08.2024 passed by the learned CJM Faridabad whereby application filed by the petitioners for discharge of sureties furnished in favour of respondent No.2 who is convicted in FIR No.1013 dated 06.10.2018 under Sections 379A of IPC (Section 411 IPC added later on) registered at Police Station Central Faridabad, District Faridabad and now granted bail by this Court in CRM-5823-2020 in CRA-S-569-2020 has been dismissed. 2.

The brief facts of the present case are that the above stated FIR was recorded alleging that on 06.10.2018, three boys approached the complainant and after snatching her mobile phone they fled from the scene. 3.

Learned counsel for the petitioners submit that after securing the order of suspension of sentence, awarded to respondent No.2, the petitioners stood as surety for his release. Thereafter, the petitioners moved an application (Annexure P-4) before the learned Chief Judicial Magistrate, Faridabad for discharging the

surety bonds so furnished by them in favour of respondent No. 2. However, by passing the impugned order, the said application has been dismissed. 4.

Learned counsel for the petitioners further submits that once the petitioners sought their discharge as sureties of respondent No. 2, then it was incumbent upon the Magistrate to do so in compliance of the provisions of Section 444 of Cr.P.C., which are mandatory in nature but the learned CJM, passed the impugned order rejecting the prayer of the petitioners. While relying upon the judgment of this Court rendered in Ritesh vs. State of Haryana, CRM-M-63522022, it is urged by learned counsel for the petitioners that the petition deserves to be allowed and the impugned order is liable to be set aside. 5.

Notice of motion.

6.

At asking of Court, Mr. Anmol Malik, DAG, Haryana, who is present in Court, accepts notice on behalf of respondent(State) and opposed the present petition and has submitted that the perusal of the impugned order would show that in fact, section 444 of Cr.P.C., 1973 as is apparent, has not even been brought to the notice of the learned Chief Judicial Magistrate, Faridabad. As such, it is argued that the petition does not deserve to be allowed. 7.

Heard the rival submissions made by learned counsel for the parties. 8.

Admittedly, the petitioners stood as surety for respondent No.2 and the petitioners moved an application under Section 444 Cr.P.C. for seeking withdrawal/discharge of the surety furnished. Learned CJM issued notice to convict/respondent No.2, who in compliance appeared and expressed his in ability to furnish fresh surety and stated that he has no objection if the present sureties were discharged. However, learned CJM dismissed the application while observing that the bail was granted by thi Court and if sureties were allowed to be discharged

then accused/respondent No.2 would be liable to be taken into custody. 9.

Before delving into the question as to the legality of the impugned order, this Court would like to refer to Section 444 of Cr.P.C., which is relevant for the purpose of deciding the present petition and is reproduced below: "444. Discharge of sureties.

(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.

On a perusal of this section, it is revealed that it is open to a surety to apply to the Magistrate to discharge the surety bond furnished before him/her either wholly or partly and what is required to be done by the Magistrate is to issue warrants of arrest directing the person so released to be brought before him and on appearance of such person, the Magistrate is further required to direct the bonds to be discharged while calling upon the accused to find other sufficient sureties and in case of his failure to do so, to commit him to jail. However, in the instant case, though the Magistrate sought appearance of respondent No.2 by issuance of notice after moving applications by the petitioners to discharge them from the obligation of being sureties to respondent No. 2, however, when respondent No. 2 recorded a statement that he was unable to find any other surety, then instead of committing

him to jail on account of his failure to furnish fresh surety bonds for the purpose of maintaining the order of suspension of sentence, the Magistrate rejected the prayer made by the petitioners by making observations as discussed above. The question that arises for consideration before this Court is as to whether the impugned order is sustainable in the eyes of law? In the considered opinion of this Court, the answer to this question should be in the negative as the provisions of Section 444 of Cr.P.C. are mandatory in nature and cast a duty upon the Magistrate to discharge the bonds of the sureties on applications being moved before him after giving opportunity to the person in whose favour such bonds were furnished to find some other sufficient sureties. Merely because of the fact that the sentence of respondent No.

2 was suspended by this Court, the petitioners could not be deprived of their right to seek discharge of their bonds as sureties. In this regard, this Court places reliance upon the authority cited as Raghubir Singh vs. State of Bihar : 1986 (4) SCC 481, wherein it was observed as under: "20. The effect of the new proviso is to entitle an accused person to be released on bail if the investigating agency fails to complete the investigation within 60 days. A person released on bail under the proviso to Section 167(2) for the default of the investigating agency is statutorily deemed to be released under the provisions of Chapter 33 of the Code for the purposes of that chapter. That is provided by the proviso to Section 167(2) itself. This means, first, the provisions relating to bonds and sureties are attracted.

Section 441 provides for the execution of bonds, with or without sureties, by persons ordered to be released on bail. One of the provisions relating to bonds is Section 445 which enables the Court to accept the deposit of a sum of money in lleu of execution of a bond by the person required to execute it with or without sureties.

incarcerated. Sections 441 and 442, to borrow the language of the Civil Procedure Code, are in the nature of provisions for the execution of orders for the release on bail of accused persons. What is of importance is that there is no limit of time within which the bond may be executed after the order for release on bail is made. Very often accused persons find it difficult to furnish bail soon after the making of an order for release on bail. This frequently happens because of the poverty of the accused persons. It also happens frequently that for various reasons the sureties produced on behalf of accused persons may not be acceptable to the Court and fresh sureties will have to be produced in such an event.

The accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straightway. Orders for release on bail are effective until an order is made under Section 437(5) or Section 439(2). These two provisions enable the Magistrate who has released an accused on bail or the Court of Session or the High Court to direct the arrest of the person released on bail and to commit him to custody. The two provisions deal with what is known in ordinary parlance as cancellation of bail.

Since release on bail under the proviso to Section 167(2) is deemed to be released on bail under the provisions of Chapter XXXIII, an order for release under the proviso to Section 167(2) is also subject to the provisions of Sections 437(5) and 439(2) and may be extinguished by an order under either of these provisions. It may happen that a person who has been accepted as a surety may later desire not to continue as a surety. Section 444 enables such a person, at any time, to apply to a Magistrate to discharge a bond either wholly or so far as it relates to the surety. On such an application being made, the Magistrate is required to issue a warrant of arrest directing the person released on bail to be brought before him.

On the appearance of such person or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as it relates to the surety, and shall call upon such person to find other sufficient surety and if he fails to do so, he may commit him to jail. (Section 444).

position where he was immediately before the execution of the bond. The order for release on bail is not extinguished and is not to be defeated by the discharge of the surety and the inability of the accused to straightway produce a fresh surety. The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety."

11.

Reliance can also be placed upon the authorities rendered in Ritesh's case (supra) as Pradeep Kumar Das vs. State of Odisha, Crl. Appeal No. 286 of 2003, decided on 13.07.2023, wherein similar observations have been made. 12.

In view of the discussion as made above, the present petition is allowed and the impugned order dated 29.08.2024(Annexure P-5), passed by the learned Chief Judicial Magistrate, Faridabad is set aside. The sureties furnished by the petitioners shall be deemed to be discharged. 13.

Let copies of this order be sent to learned Chief Judicial Magistrate for due compliance in accordance to law.

(KIRTI SINGH) 25.09.2024 JUDGE Kavita Whether speaking/reasoned Yes/No Whether reportable Yes/No