Karnataka High Court
Ambarish vs The State Of Karnataka on 30 May, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.P No. 200469 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL PETITION NO. 200469 OF 2024 (482)
BETWEEN:
AMBARISH
S/O SUBASH RATHOD,
AGE: 39 YEARS,
OCC: STONE CUTTING WORK,
RESIDENCE OF JANAGERI,
TQ: AND DIST: VIJAYAPURA,
NOW RESIDING AT
UDBHAV HANUMANT TEMPLE,
BIDDAPUR COLONY,
KALABURAGI-585 103.
...PETITIONER
(BY SRI KEDAR DESAI, ADVOCATE)
AND:
Digitally signed
by SHILPA R
TENIHALLI
Location: HIGH
1. THE STATE OF KARNATAKA,
COURT OF
KARNATAKA
THROUGH ASHOK NAGAR P.S.,
KALABURAGI REPRESENTED BY
THE ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
2. SAGAR S/O SOHANLAL RANKA,
AGE: 58 YEARS, OCC: BUISNESSMAN,
R/O INDUSTRIAL AREA,
JEWARGI CROSS, KALABURAGI-585 102.
...RESPONDENTS
(BY SMT. ANITA M. REDDY, HCGP FOR R-1;
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CRL.P No. 200469 of 2024
NOTICE TO R-2 IS DISPENSED WITH V/O DTD.30.05.2024)
THIS CRL.P IS FILED U/S.482 R/W 439(1)(B) OF CR.P.C.
PRAYING TO ALLOW THE PETITION BY SETTING ASIDE THE
ORDER DATED 04.04.2024 PASSED BY THE HONOURABLE
COURT OF I ADDL. DIST. AND SESSIONS JUDGE, KALABURAGI
IN CRL. MISC. NO.412/2024 IN CONSEQUENCE OF WHICH
MODIFY THE CONDITION NO.2 OF THE BAIL ORDER DATED
29.01.2024 PASSED BY THE HONOURABLE COURT OF I ADDL.
DIST. AND SESSIONS JUDGE IN CRL. MISC. NO.59/2024.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner who is accused No.1 in S.C.No.82/2022
pending before the Court of I Additional District and
Sessions Judge at Kalaburagi arising out of Crime
No.46/2022 registered by Ashoknagar Police Station,
Kalaburagi for offences punishable under Sections 143,
147, 148, 149, 302, 397, 120(B) and 201 read with
Section 149 of Indian Penal Code and Section 25(1)(a)
and 27(3) of the Indian Arms Act, 1959 is before this
Court with a prayer to set aside the order dated
04.04.2024 passed by the Court of the I Additional
Sessions Judge, Kalaburagi in Crl.Misc.No.412/2024 and
consequently modify Condition No.2 of the order passed in
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Crl.Misc.No.59/2024 by the court of the I Additional
District and Sessions Judge, Kalaburagi dated 29.01.2024.
2. Heard the learned counsel for the petitioner and
the learned High Court Government Pleader for respondent
No.1/State.
3. Petitioner has been charge-sheeted for the
aforesaid offences in Crime No.46/2020 and he is being
tried for the said offences before the court of I Additional
District and Sessions Judge, Kalaburagi in
S.C.No.82/2022. Petitioner was granted regular bail in the
said case in Crl.Misc.No.1712/2022 disposed of on
30.08.2022 by the jurisdictional Sessions Court.
Subsequently, he had jumped the bail. The Trial Court had
issued non-bailable warrant against him on 04.12.2023.
Thereafter the petitioner appeared before the Trial Court
voluntarily. However, the Trial Court taking into
consideration that he had violated the bail conditions that
was imposed on him in Crl.Misc.No.1712/2022, cancelled
his bail bonds and remanded him to judicial custody.
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Subsequently, the petitioner had filed Crl.Misc.No.59/2024
before the Trial Court under Section 439 of Cr.P.C and
same was allowed on 29.01.2024 subject to certain
conditions. Condition No.2 imposed by the Trial Court in its
order dated 29.01.2024 passed in Crl.Misc.No.59/2024
reads as follows:-
"2. The petitioner shall deposit
forfeited previous bail bond amount in five
installments."
4. Being aggrieved by the same, petitioner had
filed an application under Section 439(1)(b) of Cr.P.C in
Crl.Misc.No.412/2024 which was dismissed by the Trial
Court vide the order impugned dated 04.04.2024.
Therefore, the petitioner is before this Court.
5. Learned counsel for the petitioner submits that
Condition No.2 imposed by the Trial Court while granting
regular bail to the petitioner in Crl.Misc.No.59/2024 is
illegal and without following the prescribed procedure
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under law. The Trial Court was not justified in directing the
petitioner to deposit the forfeited bail amount.
6. Per contra, learned High Court Government
Pleader has opposed the petition. She submits that
petitioner who was granted regular bail earlier in
Crl.Misc.No.1712/2022 had jumped the bail and therefore
his bail bonds were cancelled and the surety furnished by
him was also discharged. Under the circumstances, the
Trial Court was fully justified in imposing the impugned
condition. Accordingly, she prays to dismiss the petition.
7. Section 441 of Cr.P.C provides for bond of
accused and sureties and Section 441A of Cr.P.C provides
for declaration by the sureties. Section 444 of Cr.P.C
provides for discharge of sureties and Section 446 of
Cr.P.C provides for procedure when bond has been
forfeited. Section 446A of Cr.P.C provides for cancellation
of bond and bail bond.
8. Sections 446 and 446A of Cr.P.C reads as
follows :-
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"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,
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,
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.
Explanation. - A condition in a bond for
appearance, or for production of property, before a
Court shall be construed as including a condition for
appearance, or as the case may be, for production
of property, before any Court to which the case may
subsequently be transferred.
(2) If sufficient cause is not shown and the
penalty is not paid, the Court may proceed to
recover the same as if such penalty were a fine
imposed by it under this Code:
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[Provided that where such penalty is not paid
and cannot be recovered in the manner aforesaid,
the person so bound as surety shall be liable, by
order of the Court ordering the recovery of the
penalty, to imprisonment in civil jail for a term
which may extend to six months.]
(3) The Court may, [after recording its
reasons for doing so], remit any portion of the
penalty mentioned and enforce payment in part
only.
(4) Where a surety to a bond dies before the
bond is forfeited, his estate shall be discharged from
all liability in respect of the bond.
(5) Where any person who has furnished
security under section 106 or section 117 or section
360 is convicted of an offence the commission of
which constitutes a breach of the conditions of his
bond, or of a bond executed in lieu of his bond
under section 448, a certified copy of the judgment
of the Court by which he was convicted of such
offence may be used as evidence in proceedings
under this section against his surety or sureties,
and, if such certified copy is so used, the Court shall
presume that such offence was committed by him
unless the contrary is proved.
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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."
9. Perusal of the material available on record
would go to show that the prescribed procedure in the
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aforesaid provisions of Code of Criminal Procedure has not
been followed in the present case by the Trial Court and
instead the Trial Court imposed a condition in the bail
order passed in Crl.Misc.No.59/2024 dated 29.01.2024
directing the petitioner to deposit the forfeited previous
bail bond amount in five installments. In my considered
view that such a condition could not have been imposed
by the Trial Court in the absence of complying the
requirement of the aforesaid provisions of law. Therefore,
the impugned condition imposed by the Trial Court in
Crl.Misc.No.59/2024 dated 29.01.2024 and the order
passed in Crl.Misc.No.412/2024 dated 04.04.2024
rejecting the petitioner's application filed for modification
of the impugned condition cannot be sustained.
Accordingly, the following :
ORDER
The criminal petition is allowed.
The order dated 04.04.2024 passed by the court of
the I Additional District and Sessions Judge, Kalaburagi in
Crl.Misc.No.412/2024 dated 04.04.2024 is set-aside and
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consequently, the impugned Condition No.2 imposed by
the Court of the I Additional District and Sessions Judge,
Kalaburagi in Crl.Misc.No.59/2024 dated 29.01.2024
stands deleted.
All other conditions imposed in Crl.Misc.No.412/2024
dated 04.04.2024 remained unaltered.
If the petitioner has deposited any amount before
the Trial Court pursuant to the impugned Condition No.2
imposed by the Trial Court in Crl.Misc.No.59/2024, the
said amount is directed to be refunded to the petitioner.
It is made clear that this order will not come in the
way of the Trial Court proceedings against the petitioner
or his surety for recovery of the bail bond amount in
accordance with law.
Sd/-
JUDGE
SN
