Audram @ Adram vs The State By Mangalore Ullal P S
2025 Latest Caselaw 2135 Kant

Karnataka High Court

Audram @ Adram vs The State By Mangalore Ullal P S on 9 January, 2025

Author: V Srishananda

Bench: V Srishananda

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                                                     NC: 2025:KHC:765
                                                CRL.A No. 636 of 2020




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 9TH DAY OF JANUARY, 2025

                                    BEFORE
                   THE HON'BLE MR JUSTICE V SRISHANANDA
                       CRIMINAL APPEAL NO. 636 OF 2020
            BETWEEN:

            AUDRAM @ ADRAM,
            S/O HAMMABBA BEARY @ HAMMABBA,
            AGED ABOUT 50 YEARS,
            R/AT NO.2-134/1, MITHABAGILU,
            BELTHANGADY TALUK,
            D.K.-574 240.
                                                         ...APPELLANT

            (BY SRI KARUNAKARA P, ADVOCATE)

            AND:

            THE STATE BY MANGALORE ULLAL P S,
            REP. BY STATE PUBLIC PROSECUTOR,
            ATTACHED TO THE OFFICE OF
            ADVOCATE GENERAL, HIGH COURT,
Digitally   BANGALORE-560 001.
signed by
MALATESH                                               ...RESPONDENT
KC
Location:   (BY SRI CHANNAPPA ERAPPA, HCGP)
HIGH
COURT OF
KARNATAKA        THIS CRL.A. IS FILED U/S.449 CR.P.C TO SET ASIDE THE
            ORDER DATED 01.10.2019 PASSED BY I ADDL.DISTRICT AND
            SESSIONS       JUDGE,       D.K.,      MANGALORE       IN
            CRL.MISC.NO.1094/2018 THE BAIL BOND OF RS.50,000/- IS
            FORFEITED WARRANT AND SUMMONS WAS ISSUED.

                THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
            JUDGMENT WAS DELIVERED THEREIN AS UNDER:
                                 -2-
                                                NC: 2025:KHC:765
                                          CRL.A No. 636 of 2020




CORAM:     HON'BLE MR JUSTICE V SRISHANANDA


                        ORAL JUDGMENT

Heard Sri.Karunakara P., learned counsel for the

appellant and Sri. Channappa Erappa, learned HCGP for the

respondent-State.

2. Appeal by the surety challenging the validity of the

order passed by the learned I Additional District Sessions

Judge, Dakshina Kannada, Mangaluru in Crl.Misc.No.1094/2018

dismissing the application filed by the appellant under Section

446(3) of Cr.P.C.

3. Facts in the nutshell which are utmost necessary for

disposal of the present appeal are as under:

Present appellant stood as surety for accused No.5

namely Sri.Althaf in S.C.No.48/2015. Admittedly, accused No.5

jumped the bail and sufficient time was granted for the present

appellant to secure the presence of accused No.5 by issuing

necessary notice. Present appellant being the surety, was duty

bound to secure the presence of accused No.5 in the sessions

trial but he failed to do so.

NC: 2025:KHC:765

4. Ultimately, the bond was forfeited and the present

appellant filed an application under Section 446(3) of Cr.P.C.

seeking for remission of the payment of bond amount. The

same was opposed by the prosecution by contending that

appellant stood as surety for accused No.5 voluntarily and did

not discharge the responsibility of the surety as per the bond.

5. It was also brought to the notice of the Court that

the present appellant stood as surety for accused

No.6/Mohammed Iqbal in S.C.No.55/2016 and thereby, it was

portrayed before the learned trial Judge that the accused is a

professional surety. In other words, the trial Court took into

consideration the attendant facts and circumstances of the case

and in the absence of any explanation forthcoming in properly

disclosing the fact that in how many cases the present

appellant stood as surety and he has tried his level best to

secure the presence of the accused No.5 in S.C.No.48/2015

and rejected the application filed under Section 446(3) of

Cr.P.C. and whereby, he was directed to pay the entire bond

amount in a sum of Rs.1,00,000/-. Being aggrieved by the

same, the present appeal came to be filed.

NC: 2025:KHC:765

6. Sri.Karunakara P., learned counsel for the appellant

reiterating the grounds urged in the appeal memo, argued at

length by contending that the trial Judge failed to consider the

discretionary power vested in it under Section 446(3) of Cr.P.C.

in exonerating the appellant to pay the bond amount or at least

order for remission of the part of the bond amount and sought

for allowing the appeal.

7. Alternatively, Sri.Karunakara P., learned counsel

contended that in the event of this Court upholding the

impugned order, Court may consider reducing the bond amount

by exercising the power under Section 446(3) of Cr.P.C. which

is available to this Court as well in the appellate jurisdiction and

sought for allowing the appeal. In this regard, he filed a memo.

Memo reads as under:

"The undersigned upon instructions by the party to the trial court advocate seeking remission of bond amount considering the facts and circumstances of the case in the interest of justice and equity."

8. Per contra, Sri.Channappa Erappa, learned High

Court Government Pleader for the respondent-State opposes

NC: 2025:KHC:765

the appeal grounds by contending that the voluntary act of the

appellant having not been discharged by the appellant in a

proper manner, the surety bond became forfeited automatically

by operation of law. Therefore, the question of exonerating the

appellant in paying the bond amount would not arise at all.

9. He further contended to order for portion of the

bond amount to be paid by passing an order of remission in

respect of the balance amount, no grounds are made out by

the appellant. Therefore, the alternate prayer cannot be

granted by this Court.

10. In reply, Sri.Karunakara P., learned counsel for the

appellant contended that appellant would have tried his level

best to secure the presence of the accused No.5 but he was

unsuccessful and ultimately, accused No.5 in S.C.No.48/2015

died on 22.10.2020 and therefore, taking note of these aspects

of the matter, this Court may pass orders.

11. Having heard the learned counsel for the parties,

following point would arise for consideration:

Whether the appellant has made out a case for remission of the cost of the bond amount?

NC: 2025:KHC:765

12. This Court has perused the material on record

meticulously. Admittedly, it is the voluntary act of the appellant

to stand as surety in respect of accused No.5 in

S.C.No.48/2015.

13. The appellant failed to produce the order sheet in

S.C.No.48/2015 as to how long the sessions case got adjourned

and what are the efforts made by the prosecution to secure the

presence of accused No.5 before the Court in S.C.No.48/2015.

14. Be what it may. Fact remains that after exhausting

all remedy including the issue of non-bailable warrant, learned

Sessions Judge has ultimately issued the show-cause notice to

the surety, who is the appellant before this Court and

ultimately passed the order by registering the case in

Crl.Misc.No.1094/2018 in respect of the application filed by the

surety under Section 446(3) of Cr.P.C. Prosecution placed on

record about the conduct of the present appellant in not

securing the presence of accused No.5 which has been

discussed at length by the learned trial Judge in the impugned

order.

NC: 2025:KHC:765

15. In reasons paragraph No.3, learned trial Judge has

discussed as to conduct of the appellant in not securing the

presence of accused No.5. In the next paragraph, learned trial

Judge has also noted that the very same appellant has stood as

surety in S.C.No.55/2016 for accused No.3 and accused No.6-

Mohammed Iqbal.

16. It is also noticed by the learned trial Judge that

very same appellant has stood as surety in several other cases.

It is also noted that the affidavit filed by the appellant did not

disclose that he has stood for surety in S.C.No.48/2015 when

he has filed the surety affidavit in subsequent cases. Therefore,

the trial Court did not find any good reasons in ordering the

remission of the bond amount.

17. Taking note of these aspects of the matter, this

Court per se not inclined to interfere with the order of the trial

Court.

18. Nevertheless since the accused No.5 is no more and

he died on 22.10.2020 and order came to be passed on

01.10.2019, the sessions case would now proceeded as the

case stood abated as against accused No.5, this Court is of the

NC: 2025:KHC:765

opinion that the appellant if directed to pay 50% on the bond

amount i.e., Rs.50,000/-, the ends of justice would be met.

19. It is also made clear that the appellant in future

shall not indulge in similar activities and whenever he wants to

stand as surety must disclose all necessary facts in his affidavit,

failing which, he would expose himself for the necessary penal

consequences.

20. In view of the forgoing discussion, following order is

passed:

ORDER

Criminal Appeal is allowed-in-part.

Appellant is directed to pay 50% of the bond

amount i.e., a sum of Rs.50,000/- on or before

10.02.2025, failing which, necessary proceedings

be initiated to recover the said amount as arrears

of land value.

Sd/-

(V SRISHANANDA) JUDGE

NR/-