Madhya Pradesh High Court
Jalam Singh vs State Of M.P. on 3 July, 2014
1 Crr.579/2006
(Jalam Singh & others Vs. State of M.P.)
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
***
SINGLE BENCH HON. SHRI JUSTICE B.D. RATHI *** (Criminal Revision No.579/2006) Petitioner (1) Jalam Singh S/o Shri Devlal, Bheel by caste, Aged 70 years, Occupation-Agriculturist.
(2) Ranglal s/o Shri Bherulal, Bheel by caste, Aged 62 years, Occupation-Agriculturist.
(3) Dashrath s/o Shri Mathuralal, Occupation-Agricultuist, All residents of Gram Kakraya, P.S. Kumbhraj, Tehsil Chachoda, district Guna.
Versus Respondents State of Madhya Pradesh through P.S. Dabra District Gwalior (M.P.).
Shri B.S.Bhadoriya, Advocate for the petitioner.
Shri R.K.Shrivastava, Public Prosecutor for the respondent/State.
Order (Passed on the day of 3rd July, 2014) The following order of the Court was passed by :
B.D. Rathi, J:-2 Crr.579/2006
(Jalam Singh & others Vs. State of M.P.) Heard on R-I.A.No.4968/14, second repeat application preferred under Section 397(1) of Cr.P.C. and section 446A of Cr.P.C.
(2) Brief facts of the case are that vide impugned judgment of the trial court dated 6/12/05 in Misc. Cri. Case No.278/03, the petitioners were convicted for offence punishable under Sections 420 and 120-B of I.P.C. and sentenced to undergo two-two years' R.I. with a fine of Rs.500/- each on both the counts. Thereafter, Cri. Appeal No.22/06 was preferred before the Additional Sessions Judge, Chachoda, district Guna which too came to be dismissed by the judgment dated 4/7/2006. Being aggrieved by the aforesaid findings under the impugned judgment, the petitioners have filed present petition in this court alongwith an application (I.A.No.11692/06) for suspension of sentence and grant of bail, same was allowed on 17/7/06. The petitioners were directed to be released on bail on furnishing personal bail bond in the sum of Rs.25,000/- with one solvent surety of the like amount to the satisfaction of the trial court concerned. It is submitted that in compliance of the aforesaid directions, the petitioners were released on bail on furnishing bail bonds and surety bonds. On 17/8/07 the petitioners failed to appear before the Registrar of this court, the date fixed for their appearance. Thereafter, when the case came up for hearing before this court, counsel for the petitioners prayed for time for moving appropriate application for condonation of absence, which liberty was granted on two occasions, i.e., on 12/12/11 and 6/1/12. Ultimately despite availing opportunities when application was not filed by the petitioners' counsel, by order dated 11/4/14 arrest warrants were issued against the petitioners to secure their presence before this court on 18/6/14. In compliance of the arrest warrant, on 16/6/14 the petitioners were arrested and brought to this court and after 3 Crr.579/2006 (Jalam Singh & others Vs. State of M.P.) that they were sent to the jail. In this situation, this second application has been filed for suspension of sentence and grant of bail on behalf of the petitioners.
(3) In support of the application aforesaid, first of all, the argument raised by their learned counsel is that proceedings under Section 446 of Cr.P.C. have not been initiated against the petitioners or their sureties and therefore, by virtue of proviso to Section 446-A of Cr.P.C., the petitioners have a right to be released on bail because the order dated 17/7/06 was not declared as cancelled. To strengthen his submission, learned placed reliance on the decision of this court in the case of Mukesh & Ors. Vs. State of M.P. [1993 ILR (M.P.) page 346].
(4) In reply, opposing the prayer made by the petitioners' counsel it was contended by the learned Public Prosecutor appearing for the respondent/State that when conditions of the bail order dated 17/7/06 were breached by the petitioners, arrest warrants were issued and in compliance thereto, the petitioners were arrested and sent to jail. It is also submitted that soon after their arrest and having been taken into custody, their bail bonds were forfeited in view of provisions of Sections 446 of Cr.P.C. So far as provision of Section 446-A of Cr.P.C. is concerned, it is submitted that until and unless sufficient cause is not shown by the petitioners in regard to their absence on the date of appearance, they were not entitled to seek any remedy as mentioned in sub-clause (b) thereof. Hence, it is prayed by the learned counsel for the State that the application deserves to be rejected.
(5) After taking into consideration the entire arguments so advanced by the parties and annunciation of the facts of the 4 Crr.579/2006 (Jalam Singh & others Vs. State of M.P.) case, and upon bare reading of both the provisions of Sections 446 and 446-A with their attached provisos, this court is not inclined to allow the second application preferred by the petitioners for their released on bail for the reasons mentioned in the subsequent paragraphs.
(6) At this juncture, it should be noticed that forfeiture of bond as indicated in Section 446 of the Criminal Procedure Code is by the act of the accused, who has committed breach of the condition imposed. Such forfeiture emanates only from the conduct of the accused and there is no need or occasion for the Court to pass any order to forfeit such bond. Section 446 of the Code which deals with forfeiture of bonds reads as under:-
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, (Emphasis supplied) 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, (Emphasis supplied) 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.
(7) It is true that forfeiture of bail bonds does not amount to cancellation of bail because legislation has not used the word "cancellation". Now, provision of Section 446-A of Cr.P.C. reads as under:-
5 Crr.579/2006(Jalam Singh & others Vs. State of M.P.) "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.] "
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.
(8) Again, from bare look to provisions of section 446-A it is clear that when condition of bail order was breached then bail bond shall stand forfeited, meaning thereby automatically cancelled. According to Section 446 (a)(b) of Cr.P.C., such persons who are sent to jail cannot be released on the same bail bonds until and until sufficient cause has been delineated by them.
(9) On considering the application (I.A.No.4968/14), this court finds that not a single word was mentioned that on account of such a reason the petitioners were prevented from appearing on the fixed date when they were called to appear 6 Crr.579/2006 (Jalam Singh & others Vs. State of M.P.) before the Registry. Therefore, in the opinion of this court, the petitioners are not entitled to get release order in their favour under the shelter of the aforesaid proviso.
(10) So far as the applicability of proviso given under Section 446-A of I.P.C. is concerned, word "may" has been employed by the legislation meaning thereby it is the discretion of the court to release the petitioners or not. It is candidly clear that when a bond for appearance in a case of a person is forfeited for breach of a condition, his bond and surety shall stand cancelled and such person will not be entitled as of right to be released on bail upon the execution of fresh personal or surety bond and it would be within the discretion of the court to release him or not to release him upon the execution of fresh personal or surety bond. In case the court releases him, the fresh security may be demanded from him in accordance with the directions of the original order or the court may order for higher amount.
(11) On coming back to the facts of the case at hand, it is seen that the petitioners remained absent since long for near about seven years and more. No sufficient reasons are assigned to show their inability to appear before the registry.
This animus on the part of the petitioners in the absence of showing satisfactory reason lends to draw adverse inference against them. Such persons who have no respect for the courts and who are willingly/unwillingly show disrespect by doing their deliberately acts can never be permitted to get benefit under the shelter of proviso to section 446-A of Cr.P.C.
(12) In the light of the aforesaid discussions, in the opinion of this court, therefore the accused-petitioners have no right to get release order in their favour on execution of a fresh 7 Crr.579/2006 (Jalam Singh & others Vs. State of M.P.) personal bond.
(13) Accordingly, the application (R-I.A.No.4968/14) being devoid of merits deserves to be and is hereby dismissed.
(B.D.Rathi) Judge (Bu)