This is an application filed by the petitioner who is the accused in Crime No.840/2012 of Central Police Station, Ernakulam challenging the condition imposed by the Chief Judicial Magistrate Court, Ernakulam in Crl.M.P.No.1904/2013 of that court under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that petitioner is arrayed as 7th accused in Crime No.840/2012 of Central Police Station, Ernakulam and while he was undergoing imprisonment in connection with another case in Calcutta jail, on production warrant, he was produced before the Chief Judicial Magistrate on 12.05.2012 and he was formally arrested for this case and remanded for this case as well and thereafter, he is in remand in connection with this case also. The allegation against him was that he along with other accused persons have committed the offence punishable under Sections 419, 420, 465, 468, 471 read with Section 34 of Indian Penal Code and Section 66 (C) and (D) of Information Technology Act. He filed Crl.M.P.No.1904/2013 for getting statutory bail under Section 167(2) of Code of Criminal Procedure read with Section 437 of Code of Criminal Procedure and the learned magistrate by Annexure A1 order granted bail with conditions inter alia that he shall get a surety at least one from India along with other conditions. The petitioner could not comply with the condition. Thereafter he filed another application before the court below to lift that condition and permit him to deposit a reasonable amount as security required under Section 445 of Code of Criminal Procedure. The learned magistrate, according to the petitioner, has dismissed that application as well. So, the petitioner has come before this court seeking the following relief:
To call for the records leading to Annexure A1 order dated 11.04.2013 and modify the conditions imposed under the impugned order dated 11.04.2013 in Crl.M.P.No.1904/2013 by the court below.”
3. Heard the Counsel for the petitioner and the learned Public Prosecutor appearing for the State.
4. The Counsel for the petitioner submitted that he is a Nigerian national and the only allegation against him was that his IM number of the mobile phone and the mobile phone involved in the case are same and it was alleged to be that of the accused and on that ground he has been implicated. Except that allegation, he has no connection with the commission of the crime. Further, according to the Counsel for the petitioner, the court has got ample power under Section 445 of Code of Criminal Procedure in appropriate cases instead of insisting for surety allow the parties to provide cash security to the satisfaction of that court to grant bail. Further, he is a man from Nigeria. There is no possibility of getting a surety from India as well. So, on account of the condition imposed, he is not able to enjoy the bail order that has been granted to him.
5. The application was opposed by the Public Prosecutor on the ground that the investigation is almost complete and in fact if he is released on bail, being a foreign national, even if any condition is imposed, he will not be available and mere deposit of the amount will not be sufficient to procure his presence for trial. So, there is nothing to interfere with the condition imposed by the court below.
6. It is an admitted fact that the petitioner was arrayed as 7th accused in Crime No.840/2012 of Central Police Station, Ernakulam along with other accused persons alleging commission of the offences under Sections 419, 420, 465, 468, 471 read with Section 34 of Indian Penal Code and Section 66 (C) and (D) of Information Technology Act. It is also an admitted fact that at the time when the alleged offence was committed, he was in remand in connection with another crime in Calcutta jail and he was produced before the Chief Judicial Magistrate Court on production warrant on 12.05.2012 and on that day, he was arrested for this case also and remanded by the magistrate and thereafter, he is in custody in this case also. It is also an admitted fact that later he was convicted by the Calcutta Court for the offence for which he has been charge sheeted and according to the Counsel for the petitioner, that period is now over and he is in remand only for this case. It is also an admitted fact that as per Annexure A1 order, the learned magistrate has granted statutory bail to the petitioner under Section 167(2) of Code of Criminal Procedure with conditions inter alia that he shall execute a bond for Rs.2,00,000/- with two solvent sureties each for the like sum and one of the sureties shall be a citizen of India. The petitioner could not execute the bond. Thereafter, it appears that he filed Annexure III petition for lifting this condition and permitting him to furnish cash security as provided under Section 445 of Code of Criminal Procedure and according to the petitioner, that petition was dismissed but that order was not produced along with this petition and so the petitioner has come before this court.
7. It is true that Section 445 of Code of Criminal Procedure gives power to the court in appropriate cases to exempt from insisting surety to join the bail bond and allow the person to deposit cash in lieu of surety being joined in the bail bond. But, that discretion can be exercised by the court only considering the nature of the case and also the availability of the accused for the purpose of trial etc., Admittedly in this case, the petitioner is a Nigerian national and it is not known as to whether he is having valid documents to stay in India as well. Further, it is seen from the statement filed by the Public Prosecutor that the investigation is almost nearing completion and they will be able to file the final report and they also apprehend that if the condition is modified, he is likely to escape and his presence could not be procured for trial. That apprehension cannot be said to be said to be not genuine as well considering the nature of the case and also the nationality of the petitioner etc.,
8. The conditions are being imposed in a bail at the time of granting bail to secure the presence of the petitioner for the purpose of investigation and trial. Even if he is allowed to deposit the amount alone, even if he violates the bail bond, the court can only forfeit the amount and satisfied with the fact that amount can be given to the Government and nothing more and that will not help the court to get the presence of the accused. If a proper surety is obtained for securing the presence of the accused, then at least the court can direct the sureties to take an earnest attempt to get the presence of the accused. In this case, it is not known as to how far this will be possible if no surety is insisted for releasing the petitioner on bail and allowing the party to be released on bail by getting the cash deposit alone. So, under the circumstances and also considering the nature of offence involved and the manner in which it was committed and also considering the fact that the investigation is at the fag-end and they are likely to file the final report, this court feels that there is no necessity to change or modify the condition imposed by the court below as the court below has rightly exercised the discretion in imposing the condition. At this stage, this court does not want to make any modification in the condition.
9. The Counsel for the petitioner submitted that considering the fact that he is in jail for nearly two years now and he is not able to comply with the bail condition though he was granted statutory bail, a direction may be given to the investigating agency to complete the investigation and file final report within a time bound manner and if the final report is filed, directing the magistrate to expedite the trial as well within a particular time frame. But, The learned Public Prosecutor submitted that accused Nos. 1 & 10 are to be arrested and 10th accused is also a Nigerian national. So, they will take some time to complete the investigation. But, that may not be a ground for allowing the investigation to go on for an indefinite period especially when a foreign national is being incarcerated in jail and he was not able to comply with the bail condition to get bail. So, the investigating officer is directed to complete the investigation and file final report as expeditiously as possible at any rate within three months from today and if the final report is filed, then, the learned magistrate is directed to expedite trial of the case within six months from taking cognizance on the basis of the final report to be filed in this case. In case, if the investigating agency is not able to file the final report within the time mentioned above, then, the petitioner is at liberty to file an application to release him on bail and providing Cash Security as provided under Section 445 of the Code of Criminal Procedure and that can be considered and disposed of by the concerned magistrate court in accordance with law.
With the above direction and observation, the petition is disposed of. Communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge