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Ali v State [2011] FJHC 653; HAM101.2011 (14 October 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION
[High Court Criminal Case No. HAM 101 of 2011]

BETWEEN

1. AKHTAR ALI

2. PARMA SHIVAM

[APPLICANTS]

AND:

THE STATE
[RESPONDENT]

COUNSEL : M. Khan for the Applicants
Ms L. Tabuakuro for the Respondent

Date of Hearing : Friday, 23rd September 2011
Date of Judgment: Friday, 14th October 2011

RULING

1. The accused Imshad Ali is charged for Murder and was on bail pending Trial. The accused made an application for bail variation, for him to be allowed to go to Batra Hospital in New Delhi, India, for medical treatment. After considering the application and the documents filed, the accused was allowed to go to India for medical treatment, on the condition that two sureties to be signed undertaking his presence in court after Medical Treatment.
   
2. Considering the affidavits filed by the sureties dated 20/1/2011, the applicants Akhtar Ali and Parma Shivam were accepted as sureties. At the time of accepting the applicants as sureties they were explained of their obligations.
   
3. The accused absconded bail whilst in India. The applicants (sureties) Akhtar Ali and Parma Shivam were given an opportunity to show cause why the security given in the surety bail bond of $25000 should not be forfeited to state. The two applicants showed cause against the forfeiture of bail bond by filing affidavits dated 28/6/2011.
   
4. State filed a succinct legal submission on the issue and counsel for sureties also informed that they rely on the state's submission as well.
   
5. Section 27 of the Bail Act provides provision with regard to the forfeiture of security.

Section 27 - (1) This section applies where bail is granted subject to the provision of security pursuant to Section 22.

(2) If a person who has been released on bail fails without reasonable cause to surrender into custody the court may –

(a) Order that the whole or any part of the money deposited or security given by the person be forfeited to the State;

(b) Unless cause is shown to the contrary within a period the court directs, order that the whole or any part of the money deposited or security given by a surety be forfeited to the State.

(3) Any sum ordered to be paid under this section may be enforced as if it were a fine and as if the order were a sentence for an offence.

(4) A court may review a decision made under subsection (2) if it is satisfied on an application made by or on behalf of the accused person or a surety that the accused had reasonable cause of the failure to surrender to custody.

6. Applicant Akhtar Ali in his affidavit states that he is 49 years old and a farmer and Gang Sirdar by profession. He earns $1000.00 from his cane farm per annum and about $70 every 3 weeks as Gang Sirdar. He also states that he has 3 children aged 26, 25 and 17 years respectively and are unemployed. His expenses for the studies of the son aged 17 years are approximately $3,500.00 per annum. His mother is also staying with him.
   
7. The applicant Parma Shivam in his affidavit states that he is 40 years of age and is a mechanic by profession. He earns about $50 - $70 per week. He is staying in his uncle's house as a care taker. His annual expenses on his 10 year old son is approximately $300.00.
   
8. Section 22 (3) of the Bail Act states:
   

If security by an accused person or surety as referred to in this section is considered necessary as a condition of bail the police officer or the court, as the case may be, must ascertain, under oath if necessary, the ability of the accused person or the surety to provide the security.

9. In this case it appears that the means test to find the eligibility of the surety to provide security had escaped the attention of court in accepting the 2 sureties, Akhtar Ali and Parma Shivam.
   
10. In a similar situation, in case of State vs Sinha (2008) PJHC 336; HAM 107 – 2008 (2 December 2008) deciding not to forfeit the bail money of the surety, Justice Goundar said in Para 10 of the Ruling:
    

"In these circumstances and the fact that there is no evidence before me on what inquiries were made from the 2nd respondent about her ability to provide security, I do not think it would be appropriate to order her to pay the security sum........"

Therefore in this case I find that, when consider the means and the income of the two sureties, it would not be appropriate to order the sureties to pay the full security sum of $25000, as no means test was done.

11. The two sureties were explained of their obligations when they were accepted as sureties in this case. They signed the surety bail bond with the state, knowing their obligations.
    
12. Therefore considering the means and the income of the two sureties as submitted in their affidavits, and acting in terms of Section 27(2)(b) of the bail act, I forfeit $500 each of the security given by the two sureties being part of the $25000 security given. Therefore I order that each of the sureties Akhtar Ali and Parma Shivam, to pay $500 each to the state within the specified time period granted by court.
    
13. The $500 ordered to be paid will be recovered as a fine if the said amount is not paid within the time granted by court and on default of payment of the said fine each of the surety is sentenced to 3 months imprisonment.
    

Priyantha Fernando
Judge

At Suva
14th October 2011