Karnataka High Court
Nawaz vs The State Of Karnataka on 7 November, 2023
Bench: Mohammad Nawaz
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NC: 2023:KHC:39618
CRL.A No. 695 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 695 OF 2023
BETWEEN:
1. NAWAZ,
S/O LATE HASANABBA
AGED ABOUT 35 YEARS,
R/AT NO.13-96/6,
CHERUNHI COMPOUND,
ALEKALA, ULLAL, MANGALURU TALUK,
D.K.DISTRICT-575 020.
2. ISMAIL HAMZA
S/O HAMZA
AGED ABOUT 40 YEARS,
R/AT NO.8-92/23,
PANDEL PAKKA,
ALEKALA END ROAD, ULLAL,
MANGALURU TALUK,
D.K.DISTRICT-575 020.
Digitally
signed by ...APPELLANTS
SUMITHRA R (BY SRI. SAGAR N., ADVOCATE FOR SRI. LETHIF B.,
Location: ADVOCATE)
High Court of AND:
Karnataka
1. THE STATE OF KARNATAKA
REP BY ULLAL POLICE STATION,
D.K.DISTRICT,
REPRESENTED BY
SPP HIGH COURT BUILDING,
BENGALURU-560 001.
...RESPONDENT
(BY SRI. B.LAKSHMAN, HCGP)
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CRL.A No. 695 of 2023
THIS CRL.A IS FILED U/S.449 OF CR.P.C. PRAYING TO
SET ASIDE THE ORDER DATED 13.09.2022 IN S.C.NO.72/2021
ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, D.K., MANGALURU AGAINST THE APPELLANTS.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred under Section 449 of Cr.P.C.
praying to set aside the order dated 13.09.2022 passed in
S.C.No.72/2021 by the Court of III Additional District and
Sessions Judge, D.K., Mangaluru.
2. Vide impugned order, the learned Sessions
Judge has rejected the applications filed by the appellants
under Section 446(3) of Cr.P.C. and further ordered to
attach the properties offered by both the sureties at the
time of execution of bond for release of accused No.5.
3. Charge sheet has been filed against accused
Nos.1 to 11 in connection with Crime No.107/2019 of Ullal
Police Station, for the offence punishable under Sections
143, 147, 148, 507, 341, 504, 506, 324, 307, 427 r/w 149
of IPC. The case against accused No.1 was spilt up.
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CRL.A No. 695 of 2023
4. The learned Sessions Judge vide order dated
05.10.2019, in Criminal Miscellaneous case No.1476/2019
was pleased to enlarge the accused on bail directing them
to execute a personal bond for Rs.1,00,000/- each along
with two sureties for the likesum and imposing other
conditions.
5. The appellants stood as sureties for the accused
persons. Accused No.5 remained absent before the trial
Court and therefore, notices were issued to the sureties
but they failed to produce accused No.5. Therefore, the
bail bonds of the said accused came to be forfeited and
notices were issued to both the sureties.
6. The learned Sessions Judge has rejected the
application filed by the accused under Section 446(3) of
Cr.P.C. observing that it is the duty and responsibility of
the surety to keep present the accused and in default,
they are required to show cause or they have to pay the
bail bond amount. But, both the sureties have not shown
any cause for their failure to produce accused No.5.
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CRL.A No. 695 of 2023
Hence, the learned Sessions Judge passed the order to
attach the properties offered by both the sureties at the
time of execution of the bond for release of absconding
accused No.5.
7. It is submitted by the learned counsel for the
appellants that inspite of the best efforts made by the
appellants, they were not able to secure accused No.5. He
submits that they have spent Rs.30,000/- each to secure
accused No.5, but the said accused is not traceable. He
submits that in this case all other accused are appearing
before the trial Court, even for whom the appellants have
stood as sureties.
8. The order sheet would reveal that the
appellants stood as sureties for accused Nos.2 to 11. In
the course of trial proceedings, accused No.5 remained
absent and therefore notices were issued to the surety
holders, after the bail bonds of accused No.5 was forfeited.
Since the appellants were not able to secure the presence
of accused No.5, the learned Sessions Judge has directed
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CRL.A No. 695 of 2023
the other accused persons to furnish fresh surety and
discharged the appellants as the surety holders for the
said accused persons and directed to furnish fresh sureties
as per the terms of the bail order granted in their favour.
As such the said accused have furnished separate sureties.
9. The submission made by the learned counsel
for appellant that the appellants have spent Rs.30,000/-
each for searching accused No.5, is not a ground to
absolve them from their liability. However, the fact
remains that the appellants stood as sureties for accused
Nos.2 to 11 and except accused No.5 other accused are
appearing before the trial Court.
10. It is well settled that on forfeiture of the bond,
each surety would be liable to pay the amount undertaken
by him. However in the peculiar facts and circumstances
of the case, to meet the ends of justice some remission
can be granted as it is within the discretion of the Court to
grant remission and to decide the extent of amount to be
paid in terms of the bond executed. Considering the facts
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CRL.A No. 695 of 2023
and circumstances, the appellants can be directed to
deposit a sum of Rs.30,000/- each and they are directed
to deposit the said amount on or before 18.11.2023 before
the trial Court. If the amount as directed is not deposited
within the said period, the learned Sessions Judge shall
proceed to attach the property of the appellants as
ordered. With the said modification of the impugned
order, the appeal is disposed of.
Sd/-
JUDGE
HB
