Karnataka High Court
Ambarish vs The State Of Karnataka on 30 May, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-K:3439
CRL.P No. 200469 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL PETITION NO. 200469 OF 2024 (482)
BETWEEN:
AMBARISH
S/O SUBASH RATHOD,
AGE: 39 YEARS,
OCC: STONE CUTTING WORK,
RESIDENCE OF JANAGERI,
TQ: AND DIST: VIJAYAPURA,
NOW RESIDING AT
UDBHAV HANUMANT TEMPLE,
BIDDAPUR COLONY,
KALABURAGI-585 103.
...PETITIONER
(BY SRI KEDAR DESAI, ADVOCATE)
AND:
Digitally signed
by SHILPA R
TENIHALLI
Location: HIGH
1. THE STATE OF KARNATAKA,
COURT OF
KARNATAKA
THROUGH ASHOK NAGAR P.S.,
KALABURAGI REPRESENTED BY
THE ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
2. SAGAR S/O SOHANLAL RANKA,
AGE: 58 YEARS, OCC: BUISNESSMAN,
R/O INDUSTRIAL AREA,
JEWARGI CROSS, KALABURAGI-585 102.
...RESPONDENTS
(BY SMT. ANITA M. REDDY, HCGP FOR R-1;
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NC: 2024:KHC-K:3439
CRL.P No. 200469 of 2024
NOTICE TO R-2 IS DISPENSED WITH V/O DTD.30.05.2024)
THIS CRL.P IS FILED U/S.482 R/W 439(1)(B) OF CR.P.C.
PRAYING TO ALLOW THE PETITION BY SETTING ASIDE THE
ORDER DATED 04.04.2024 PASSED BY THE HONOURABLE
COURT OF I ADDL. DIST. AND SESSIONS JUDGE, KALABURAGI
IN CRL. MISC. NO.412/2024 IN CONSEQUENCE OF WHICH
MODIFY THE CONDITION NO.2 OF THE BAIL ORDER DATED
29.01.2024 PASSED BY THE HONOURABLE COURT OF I ADDL.
DIST. AND SESSIONS JUDGE IN CRL. MISC. NO.59/2024.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner who is accused No.1 in S.C.No.82/2022 pending before the Court of I Additional District and Sessions Judge at Kalaburagi arising out of Crime No.46/2022 registered by Ashoknagar Police Station, Kalaburagi for offences punishable under Sections 143, 147, 148, 149, 302, 397, 120(B) and 201 read with Section 149 of Indian Penal Code and Section 25(1)(a) and 27(3) of the Indian Arms Act, 1959 is before this Court with a prayer to set aside the order dated 04.04.2024 passed by the Court of the I Additional Sessions Judge, Kalaburagi in Crl.Misc.No.412/2024 and consequently modify Condition No.2 of the order passed in -3- NC: 2024:KHC-K:3439 CRL.P No. 200469 of 2024 Crl.Misc.No.59/2024 by the court of the I Additional District and Sessions Judge, Kalaburagi dated 29.01.2024.
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent No.1/State.
3. Petitioner has been charge-sheeted for the aforesaid offences in Crime No.46/2020 and he is being tried for the said offences before the court of I Additional District and Sessions Judge, Kalaburagi in S.C.No.82/2022. Petitioner was granted regular bail in the said case in Crl.Misc.No.1712/2022 disposed of on 30.08.2022 by the jurisdictional Sessions Court. Subsequently, he had jumped the bail. The Trial Court had issued non-bailable warrant against him on 04.12.2023. Thereafter the petitioner appeared before the Trial Court voluntarily. However, the Trial Court taking into consideration that he had violated the bail conditions that was imposed on him in Crl.Misc.No.1712/2022, cancelled his bail bonds and remanded him to judicial custody. -4-
NC: 2024:KHC-K:3439 CRL.P No. 200469 of 2024 Subsequently, the petitioner had filed Crl.Misc.No.59/2024 before the Trial Court under Section 439 of Cr.P.C and same was allowed on 29.01.2024 subject to certain conditions. Condition No.2 imposed by the Trial Court in its order dated 29.01.2024 passed in Crl.Misc.No.59/2024 reads as follows:-
"2. The petitioner shall deposit forfeited previous bail bond amount in five installments."
4. Being aggrieved by the same, petitioner had filed an application under Section 439(1)(b) of Cr.P.C in Crl.Misc.No.412/2024 which was dismissed by the Trial Court vide the order impugned dated 04.04.2024. Therefore, the petitioner is before this Court.
5. Learned counsel for the petitioner submits that Condition No.2 imposed by the Trial Court while granting regular bail to the petitioner in Crl.Misc.No.59/2024 is illegal and without following the prescribed procedure -5- NC: 2024:KHC-K:3439 CRL.P No. 200469 of 2024 under law. The Trial Court was not justified in directing the petitioner to deposit the forfeited bail amount.
6. Per contra, learned High Court Government Pleader has opposed the petition. She submits that petitioner who was granted regular bail earlier in Crl.Misc.No.1712/2022 had jumped the bail and therefore his bail bonds were cancelled and the surety furnished by him was also discharged. Under the circumstances, the Trial Court was fully justified in imposing the impugned condition. Accordingly, she prays to dismiss the petition.
7. Section 441 of Cr.P.C provides for bond of accused and sureties and Section 441A of Cr.P.C provides for declaration by the sureties. Section 444 of Cr.P.C provides for discharge of sureties and Section 446 of Cr.P.C provides for procedure when bond has been forfeited. Section 446A of Cr.P.C provides for cancellation of bond and bail bond.
8. Sections 446 and 446A of Cr.P.C reads as follows :-
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NC: 2024:KHC-K:3439 CRL.P No. 200469 of 2024 "446. Procedure when bond has been forfeited. - (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
Explanation. - A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code:
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NC: 2024:KHC-K:3439 CRL.P No. 200469 of 2024 [Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.] (3) The Court may, [after recording its reasons for doing so], remit any portion of the penalty mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.-8-
NC: 2024:KHC-K:3439 CRL.P No. 200469 of 2024 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--
(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."
9. Perusal of the material available on record would go to show that the prescribed procedure in the -9- NC: 2024:KHC-K:3439 CRL.P No. 200469 of 2024 aforesaid provisions of Code of Criminal Procedure has not been followed in the present case by the Trial Court and instead the Trial Court imposed a condition in the bail order passed in Crl.Misc.No.59/2024 dated 29.01.2024 directing the petitioner to deposit the forfeited previous bail bond amount in five installments. In my considered view that such a condition could not have been imposed by the Trial Court in the absence of complying the requirement of the aforesaid provisions of law. Therefore, the impugned condition imposed by the Trial Court in Crl.Misc.No.59/2024 dated 29.01.2024 and the order passed in Crl.Misc.No.412/2024 dated 04.04.2024 rejecting the petitioner's application filed for modification of the impugned condition cannot be sustained. Accordingly, the following :
ORDER The criminal petition is allowed.
The order dated 04.04.2024 passed by the court of the I Additional District and Sessions Judge, Kalaburagi in Crl.Misc.No.412/2024 dated 04.04.2024 is set-aside and
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NC: 2024:KHC-K:3439 CRL.P No. 200469 of 2024 consequently, the impugned Condition No.2 imposed by the Court of the I Additional District and Sessions Judge, Kalaburagi in Crl.Misc.No.59/2024 dated 29.01.2024 stands deleted.
All other conditions imposed in Crl.Misc.No.412/2024 dated 04.04.2024 remained unaltered.
If the petitioner has deposited any amount before the Trial Court pursuant to the impugned Condition No.2 imposed by the Trial Court in Crl.Misc.No.59/2024, the said amount is directed to be refunded to the petitioner.
It is made clear that this order will not come in the way of the Trial Court proceedings against the petitioner or his surety for recovery of the bail bond amount in accordance with law.
Sd/-
JUDGE SN List No.: 1 Sl No.: 37