Karnataka High Court
Vinayak S/O Pandurang Yankanchi vs The State Of Karnataka on 11 September, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11 T H DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No.101629 OF 2018
BETWEEN:
VINAYAK S/O. PANDURANG YANKANCHI
AGE: 24 YEARS, OCC: NIL
SUBHASH NAGAR, GUDHIHAL ROAD
HUBBALLI, DIST. DHARWAD.
... PETITIONER
(BY SRI. G. S. MOT, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH THE INVESTIGATING OFFICER
OLD HUBBALLI POLICE STATION
REPRESENTED BY ITS SPP
HIGH COURT BUILDING
BENCH AT DHARWAD
... RESPONDENT
(SRI. PRAVEEN K. UPPAR, HCGP)
---
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 (1)(b) OF CR.P.C., SEEKING TO RELAX THE CONDITION
REGARDING PETITIONER'S DEPOSIT OF BAIL BOND
FORFEITURE AMOUNT AND CASH SURETY OF THE BAIL
ORDER DATED 23.08.2018 IN S.C.NO.104/2016 PENDING
BEFORE VTH ADDL. DISTRICT AND SESSIONS JUDGE,
DHARWAD SITTING AT HUBBALLI, BY MODIFYING BAIL
CONDITION AS THE SAME SUITABLE.
:2: Crl. P. No.101629/2018
THIS PETITION COMING ON FOR ORDERS, THIS DAY
THE COURT MADE THE FOLLOWING:-
ORDER
The p etitioner is accused No.6 in SC No.104/2016 pending before the V Addl. Sessions Judge, Dahwad sitting at Hub li. The p etitioner and 9 other accused are being tried in the said case for the offences punishab le under Sections 143, 147, 148, 201, 302, 307, 324 and 504 read with Section 149 of IPC.
2. This Court granted b ail to the petitioner vide ord er d ated 28/4/2016 in Crl.P.No.10272/2016 observing that the eye witnesses do not name the petitioner as the assailant. The bail was granted subject to the execution of bail bond in a sum of Rs.1,00,000/- and furnishing one solvent surety in the like-sum to the satisfaction of the trial Court. Then the p etitioner was released on b ail.
3. On 13/8/2018 the matter was listed before the trial Court for evidence of CWs.-36 and 37. The witnesses did not app ear as well as the petitioner :3: Crl. P. No.101629/2018 also failed to ap pear. The trial Court on that d ay, forfeited the b ail bond of the p etitioner and issued non-bailable warrant. Immediately, on the next date of hearing, i.e. 14/8/2018, the petitioner app eared before the Court and filed the bail application. The trial Court g ranted the bail vide ord er d ated 23/8/2018.
4. While so g ranting the bail, the trial Court imposed the following condition:
"Accordingly, at this stage it is found proper that applicant-accused shall either deposit the case security of Rs.25,000/- or shall execute the bail bond for the value of Rs.1,00,000/- with 2 sureties for likesum on the condition of attending the trial, regularly without fail.
The accused shall not tamper with any of the prosecution witness and surety shall get the encumbrance of bail order to the properties and shall produce the encumbered record rights within a period of 20 days from the date of execution of bail bond. To that effect, office to issue intimation to enter bail order to the concerned Revenue Authorities :4: Crl. P. No.101629/2018 on executing the bail bond. Accordingly, application stands allowed, subject to the payment of bond of forfeiture bail bond along with surety."
5. The petitioner seeks modification of the aforesaid cond itions. The cond itions imposed while granting the b ail should be certain and clear. In this case, the trial Court at one stretch states that Rs.25,000/- is cash security. At another stretch it states that Rs.25,000/- is in lieu of forfeiture of the bail Bond.
6. Further, when the b ail bond is to be forfeited , there should be material to show that the accused tried to hamper the trial with mala fide intention. In this case, when the petitioner was absent, even the witnesses had not appeared . On the very next d ay, he has appeared and filed fresh bail app lication.
7. Whether the Court can forfeit the bond and further seek the cash security was dealt by this Court in Sri. Mattte Manjunatha Vs. State by :5: Crl. P. No.101629/2018 Hosadurga P.S., Chitradurga District, in Crl.P.6076/2016 DD 28/9/2016 reported in 2016(4) KCCR 3713. It was held as follows:-
"3. The above order speaks by itself that the learned Sessions Judge is imposing a fine of Rs.20,000/- on the petitioner as a measure of forfeiting the earlier personal bond executing by the petitioner for a sum of Rs.50,000/-. If the Court is imposing fine consequent upon forfeiting the self bond executed by the accused, he has to proceed in accordance with the procedure contemplated by Section 446 of Cr.P.C. If he is ordering Rs.20,000/- as cash security for his release on bail, it is not permissible and against the spirit of the judgment of Apex Court in the case of MOTI RAM AND OTHERS v. STATE OF MADHYA PRADESH reported in AIR 1978 SC 1594. Situation of this nature i.e. where the accused skips the loan of his bail bond, consequent upon which his bail bond is forfeited and again he seeks bail, is regulated by Section 446A of Cr.P.C. which reads thus:
" 446A. Cancellation of bond and
bail bond.- Without prejudice to the
provisions of Section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition -:6: Crl. P. No.101629/2018
(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and
(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:
Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient".
Thus the steps to be taken under Sections 446 and 446-A being different, amalgamating both provisions is foreign to the procedure contemplated by the Code, hence, the impugned order is erroneous and illegal."
8. In the light of the above judgment the imp ugned condition is unsustainab le in law ap art from being oppressive. Therefore, the petition is allowed. The impugned cond ition in the b ail Ord er dated 23/8/2018 passed by the V Addl. Sessions :7: Crl. P. No.101629/2018 Court, Dharwad sitting at Hubb alli. is modified as follows:-
i) The petitioner shall deposit fine of Rs.500/-
in lieu of forfeiture of his earlier bail pending before the trial Court.
ii) He shall execute personal bond in a sum of Rs.25,000/- (Rupees Twenty five Thousand only) and furnish one surety in the like-sum to the satisfaction of the Trial Court for his appearance.
Sd/-
JUDGE Vmb