Karnataka High Court
J K Basheer vs State Of Karnataka on 31 January, 2019
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY 2019
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.1285 OF 2017
BETWEEN:
J.K.Basheer
S/o. J.M.Kabeer
@ Kabeer Sahib,
Aged about 41 years,
Block No.3/72/4,
Near Usmaniya Masjid,
Tenkayekkar, Permude,
Mangaluru, D.K.District-575 008. ...Appellant
(By Sri. B.Lethif, Advocate)
AND:
State of Karnataka,
Rep. by Mangaluru South Police,
Dakshina Kannada District,
Represented by
S.P.P. High Court Building,
Bengaluru-560001. ...Respondent
(By Sri. Divakar Maddur, HCGP)
This Criminal Appeal is filed under Section 449(ii) of
Cr.P.C praying to set aside the order dated:22.07.2017 in
Crl.Misc.Case No.79/2016 pending on the file of I Additional
Sessions Judge, D.K., Mangaluru against the appellant.
Crl.A.No.1285/2017
2
This Criminal Appeal coming on for Admission this day,
the Court delivered the following:
JUDGMENT
The appellant has filed this appeal challenging the order dated 22.7.2017, passed by the learned I Addl.Sessions Judge, Dakshina Kannada, Mangaluru, in Crl.Misc.No.79/2016.
2. A perusal of the materials placed before this Court at this stage go to show that the appellant was a surety for accused No.2 by name Abdul Razak @ Razak, in C.C.No.1161/2015, on the file of learned JMFC-II, at Mangaluru. The said C.C., after committal, was appears to have given a number as SC.No.107/2015. Since the said accused - Abdul Razak, remained absconded, the Court issued summons to the surety i.e., the appellant herein and since he has also failed to produce accused No.2 before the Court, a proceeding against him under Section 446 of Code of Criminal Procedure, 1973, Crl.A.No.1285/2017 3 (hereinafter for brevity referred to as `Cr.P.C.'), was initiated. The learned I Addl.Sessions Judge, Dakshina Kannada, Mangaluru, (hereinafter for brevity referred to as `Court below'), proceeded to pass an order attaching the property of the surety. It also ordered for issuance of fine levy warrant against him. When the process was in go, it appears that on 22.7.2017, the appellant/surety has made an application in the Court below under Section 446 (1)(2) & (3) of Cr.P.C. The said application was taken on record by the Court below, however, on the same day, it also directed the Superintendent of the office of the Deputy Commissioner to comply the previous order. Against the said proceeding of the order dated 22.7.2017, the appellant has preferred this appeal.
3. Learned counsel for the appellant in the course of his arguments submitted that out of the bond Crl.A.No.1285/2017 4 amount, the appellant has already paid a sum of `75,000/- and has made an application under Section 446(3) of Cr.P.C., which is still pending in the Court below, as such, a direction for the disposal of the said application be given.
4. The prayer made in this appeal is for setting aside the order dated 22.7.2017, which includes the recording of the filing of the application by the present appellant (surety in the Court below) under Section 446 (1), (2) and (3) of Cr.P.C. In such a situation, when his application is still pending, without awaiting any orders on that application or requesting the Court below to pass necessary orders on the said application, the appellant has rushed to this Court with the present appeal, which, in the circumstances of the case, is premature. As such, I do not find any ground for admission of this appeal. Crl.A.No.1285/2017 5
Accordingly, the Appeal stands dismissed as devoid of merits. However, it is appreciated if the Court below disposes off the alleged pending application said to have been filed by the appellant under Section 446 (3) of Cr.P.C. at the earliest and in accordance with law.
Sd/-
JUDGE bk/-