Punjab-Haryana High Court
Deepak Kumar vs State Of Punjab on 1 March, 2023
Neutral Citation No:=2023:PHHC:037272
CRM-M-10433-2023 (O&M) -1-
117
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-10433-2023(O&M)
Date of Decision: 01.03.2023
DEEPAK KUMAR ....Petitioner
Versus
STATE OF PUNJAB ...Respondent
CORAM: HON'BLE MR. JUSTICE HARSH BUNGER
Present : Mr. Vipin Mahajan, Advocate
for the petitioner.
Mr. Subhash Godara, Addl. AG, Punjab.
HARSH BUNGER, J. (Oral)
Present petition under Section 482 Cr.P.C. is filed seeking quashing of impugned order dated 18.01.2023 (Annexure P-4), passed by learned Session Judge, Gurdaspsur in case bearing No.SC-51-2022, titled as "State Vs. Deepak Kumar alias Deepu", arising out of FIR No.148 dated 02.08.2021 registered under Section 379-B(1) 34 of IPC at Police Station Dinangar, District Gurdaspur, whereby bail bonds of the petitioner have been forfeited to the State, his bail order has been cancelled and warrants of arrest have been ordered to be issued him.
Learned counsel for the petitioner contends that vide order dated 18.10.2021 the petitioner was granted the concession of regular bail by the learned Sessions Judge, Gurdaspur and he continued to attend the trial proceedings regularly. Learned counsel for the petitioner further submits that on 18.01.2023, the petitioner could not appear before the trial 1 of 6 ::: Downloaded on - 04-06-2023 00:32:04 ::: Neutral Citation No:=2023:PHHC:037272 CRM-M-10433-2023 (O&M) -2- Court as he noted a wrong date on account of miscommunication between the counsel and the petitioner, therefore, he could not appear on 18.01.2023, consequently his bail orders were cancelled and his bail bonds stood forfeited to the State and warrants of arrest were also ordered to be issued against him. Learned counsel submits that there was no intention on the part of petitioner to delay the proceedings and his absence before the trial court was neither intentional nor deliberate but for the aforesaid reason. Learned counsel further submits that the petitioner is ready and willing to surrender before the trial Court and join the proceedings, if he is granted one opportunity to do so. Learned counsel further submits that the petitioner undertakes to appear on each and every date before the trial court and to abide by all the terms and conditions to be imposed by this Court or by the trial Court.
Learned State counsel opposes the prayer of the petitioner raised in the instant petition by stating that he has jumped the bail and has not followed the conditions of bail, accordingly the petitioner is not entitled to any relief and prays for dismissal of this petition.
I have heard the arguments of learned counsel for the petitioner as well as learned counsel for the respondent/State and have also perused the paper book as well as the impugned order.
A perusal of order dated 18.01.2023 (Annexure P-4) reflects that the trial Court proceeded to pass the impugned order on account of absence of petitioner on 18.01.2023 (Annexure P-4). It is observed that at times, the accused or his counsel can be prevented by sufficient reasons to put an appearance before the Court on a given date and every such absence cannot be necessarily construed as a deliberate and willful absence.
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Neutral Citation No:=2023:PHHC:037272
CRM-M-10433-2023 (O&M) -3-
This Court vide judgment dated 18.07.2018, passed in CRM- M-29461-2018, titled as "Naveen Rao Vs. Central Bureau of Investigation (CBI) ACB, Chandigarh, while considering somewhat similar issue, observed as under:
"- x - x -
Keeping in view the conduct of the petitioner as he came back immediately after a period of 20 days, it appears that there was no intention on the part of the petitioner to remain absent. It can be an inadvertent mistake/lapse on his part. Moreover, the petitioner is NRI and ready to abide by all terms and conditions to be imposed by this Court or by the trial Court.
Same issue was there before the Kerala High Court in Mahesh vs. State of Kerala, 2011 (1) Cri.C.C. 834 wherein the condition of bail was violated and due to absence of the accused-petitioner, bail was cancelled. The relevant portion of said judgment is reproduced as under: -
"20. To cancel the bail under section 437(5) or 439(2) of the Code very cogent and overwhelming reasons are also to be stated. The Court shall not cancel bail in a routine manner, under section 437(5) or 439(2) of the Code, as per law. This is the settled position of law. But, the position under Section 446-A of the Code is totally different. If the Magistrate Court is satisfied that there is breach of condition of bail bond and thereby, forfeiture of the bond, the bond automatically stands cancelled under Section 446-A of the Code.
21. However, a mere violation of condition in the bail order will not lead to automatic cancellation of bail bond under Section 446-A of the Code. Apart from violation of condition in the bail order, the Court must also be satisfied that the bond is forfeited then alone, bail bond would stand cancelled and the accused can be proceeded against. It is the forfeiture of the bail
3 of 6 ::: Downloaded on - 04-06-2023 00:32:05 ::: Neutral Citation No:=2023:PHHC:037272 CRM-M-10433-2023 (O&M) -4- bond which is crucial under Section 446-A of the Code. If the breach of condition is not wilful and is due to reasons beyond his control, it cannot be said that there is forfeiture of bond. The question is dealt with in Rajan v. State of Kerala, 2006 (4) KLT 429 and it is held thus:
"A bond for appearance can be said to be forfeited, only if there is a wilful default on the part of the accused in not appearing before the Court. It is needless to say that an accused can be absent in Court due to various reasons on a particular occasion. When the counsel files an application, it follows that the accused was vigilant and he had taken steps to instruct his counsel to file an application. Such an accused cannot he said to have forfeited the bond by reason of any wilful default. It is only in cases where there is wilful default on the part of the accused to appear in Court, forfeiture of bond will follow and penalty will incur."
22. In State of Kerala v. Anil Kumar, 2005 (4) KLT SN 59, referring to cancellation of bail, this Court held thus: "an innocent violation of any condition imposed by the Court will not ipso facto lead to cancellation of bail under section 439(2) Criminal Procedure Code. The crucial and vital question is whether there has been deliberate, contumacious and unjustified infraction of the conditions imposed by the Court". It is needless to say that if the Court cannot cancel bail, if violation of condition is not wilful or deliberate, it is only reasonable to hold that such violation (which is not wilful or intentional) shall also not lead to an automatic cancellation of bail bond under Section 446-A of the Code."
In the present case also, the bail/surety bonds have 4 of 6 ::: Downloaded on - 04-06-2023 00:32:05 ::: Neutral Citation No:=2023:PHHC:037272 CRM-M-10433-2023 (O&M) -5- been cancelled as the petitioner left India without prior permission of the Court. An application for exemption from personal appearance was also moved, which was dismissed. The petitioner is NRI and he went abroad without seeking any permission from the Court, which has been stated to be inadvertent as he did not go through the terms and conditions of bail but the circumstances were beyond his control. The petitioner immediately came back to India and came to know that his bail bonds have been cancelled. There was no intention on his part to remain absent or to avoid the Court proceedings. The petitioner remained ill when he was abroad, remained there for a period of 20 days and could not come back immediately.
Accordingly, the present petition is allowed and the petitioner is directed to surrender before the trial Court on the next date of hearing i.e., 19.07.2018 by furnishing an undertaking before the trial Court that he will attend the Court proceedings regularly and will not leave the country without prior permission of the Court and abide by all terms and conditions to be imposed by the trial Court. He is directed to be released by the trial Court by furnishing adequate surety/bail bonds to its satisfaction subject to payment of cost of `25000/- to be deposited with the trial Court.
- x - x -"
In the present case also, the bail of the petitioner was cancelled and his bail bonds were forfeited to the State and warrants of arrest have been ordered to be issued against him as he did not appear on the date fixed i.e. 18.01.2023, before the trial Court for which he has given the reason that he had noted down a wrong date.
Keeping in view the above-mentioned facts and circumstances and also considering the submission of the petitioner that there was no 5 of 6 ::: Downloaded on - 04-06-2023 00:32:05 ::: Neutral Citation No:=2023:PHHC:037272 CRM-M-10433-2023 (O&M) -6- intention on his part to remain absent, this Court is inclined to afford one opportunity to the petitioner to mend his ways. Moreover, joining of proceedings by the petitioner, would ensure finalization of proceedings.
In view of the above, the present petition is disposed of with a direction to the petitioner to surrender before the trial Court on or before 15.03.2023 by furnishing an undertaking before the trial Court that he will attend the Court proceedings regularly and will not leave the country without prior permission of the Court and abide by all terms and conditions to be imposed by the trial Court. In case, the petitioner surrenders before the trial Court on or before 15.03.2023, then he be released by the trial Court upon his furnishing adequate bail bonds to its satisfaction subject to payment of cost of Rs. 10,000/- to be deposited with the trial Court in the concerned District Legal Services Authority.
However, the concerned Station House Officer shall be informed about the release of petitioner and the petitioner shall inform the concerned Station House Officer about his address at which he intends to reside during the pendency of case and any change in the address shall also be communicated to the concerned Station House Officer, forthwith. The petitioner would also furnish his telephone number to the concerned Station House Officer.
Disposed of in the above-said terms.
01.03.2023 (HARSH BUNGER)
Amandeep JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
Neutral Citation No:=2023:PHHC:037272
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