Arefabee Sk. Mohammad And Anr. vs State Of Maharashtra
2006 Latest Caselaw 943 Bom

JUDGMENT

J.H. Bhatia, J.

1. Notice to respondent returnable forthwith.

2. Mr. Daund, learned A. P.P. waives notice. With consent of the learned Counsel, the application is taken up for final hearing immediately.

3. The applicants are accused Nos. 1 and 2 in Sessions case No. 100/2004. They were on bail. Roznama reveals that both the applicants regularly and unfailingly remained present on every date except on one or two occasions. When application for exemption from attendance was made. Record reveals that on 12-7-2006 both the applicants were absent and the learned Additional Sessions Judge Basmathnagar passed an order to the effect that accused had jumped the bail, their bail bonds stand cancelled and N.B.W. be issued. On next date i.e. 17-8-2006, both the accused suo motu appeared without execution of warrant and made an application for cancellation of warrant. They stated in the application that on the previous date they could not remain present due to sad demise of mother of accused No. 1. In spite of this reason, the learned Additional Sessions Judge rejected the application, observing that the accused have jumped the bail and their bail bonds are already cancelled and therefore, no question arises to exercise the discretion to release them on bail again.

4. The applicants have preferred the present application seeking to quash and set aside the order passed by the learned Additional Sessions Judge, Basmathnagar. In view of the facts stated above, Mr. Daund, learned A. P. P. has no objection to allow this application. However, it may be pointed out that Under Section 439 Cr. P.C. the High Court or Court of Session may grant bail even in non-bailable offences subject to certain conditions and the High Court or Court of Session may also direct that any person who has been released on bail be arrested and may commit him to custody but that does not take away the power of the High Court or Court of Session to grant the bail again after passing the order Under Section 439(2) Cr. P.C. Section 446-A Cr. P.C. reads as follows:

446-A 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.

If Clause (b) and proviso are read together it becomes clear that if there was no sufficient cause to remain absent before the Court, he shall not be released on his personal bond only but he can be released on his fresh personal bond with one or more sureties. It means that if he was released on his personal bond only and there was sufficient cause For his non appearance on particular date, he can still be released on his personal bond only. Therefore, it is necessary to find if there was or was not sufficient cause for his non-appearance before he can be released again on his personal bond with or without surely.

5. The Additional Sessions Judge had cancelled the bail bonds and directed to issue N.B.W. on 12-7-2006. At that time certainly he was not aware about the circumstances in which the accused were absent. On the very next date, without execution of the warrant, the accused appeared before the Court and explained that they could not appear on the earlier date because of demise of mother of the accused No. 1. In my opinion, there could not be more sufficient reason for remaining absent on the earlier date. The learned Additional Sessions Judge rejected the application without considering the valid reason given for remaining absent on the earlier date and he also ignored the conduct of the applicants prior to 12-7-2006. Record clearly reveals that they were very punctual in remaining present before the Court. The impugned order reveals that the learned Additional Sessions Judge had passed the impugned order without properly understanding the facts and circumstances of the case and provisions of Section 446-A. In view of the circumstances. I find that the impugned order is liable to be set aside.

6. For the aforesaid reasons, the impugned order dated 17-8-2006 is hereby quashed and set aside. The application filed by the applicants/accused Nos. 1 and 2 for cancellation of warrant is hereby allowed and the applicants shall continue to be on bail on same terms and condition as before, subject to execution of fresh bail bonds.

7. Hamdast allowed.