Gurinder Pal Singh @ Bholu vs State Of Punjab
2022 Latest Caselaw 16717 P&H

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      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                                       CRM-M-58278-2022
                                               Date of Decision: 14.12.2022

GURINDER PAL SINGH @ BHOLU
                                                            ...Petitioner

                                    Versus

STATE OF PUNJAB
                                                            ...Respondent

CORAM: HON'BLE MR. JUSTICE HARSH BUNGER

Present :   Mr. Shivender, Advocate
            for Mr. B.S. Bhalla, Advocate
            for the petitioner.

HARSH BUNGER, J. (ORAL)

Prayer in the present petition filed under Section 482 of Code

of Criminal Procedure, is for quashing/setting aside of impugned order

dated 28.07.2022 (Annexure P-1) passed by the learned Additional District

and Sessions Judge, Amritsar, whereby, the bail order of the petitioner has

been cancelled and his bail bonds/surety bonds have been forfeited to the

State on account of his non-appearance on one date in proceedings relating

to case FIR No.178 dated 11.06.2014 registered under Sections 21 and 22

of the Narcotic Drugs and Psychotropic Substances Act, 1985, at Police

Station Jandiala Guru, District Amritsar Rural and his presence has been

ordered to be secured through non-bailable warrants.

Learned counsel for the petitioner submits that the petitioner

was earlier admitted to bail and thereafter, he had been regularly appearing

before the trial Court except on one or two occasions. It is submitted that

the case was listed on 28.07.2022 and the petitioner was standing outside

the Court below but his case was not listed and in the evening, it transpired

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that the case was transferred to some other Court and on account of his

non-appearance, his bail order was cancelled and his bail/surety bonds were

forfeited to State and the non-bailable warrants were issued. Thereafter, the

petitioner applied for anticipatory bail in the Court of Sessions at Amritsar,

which was dismissed on 27.10.2022 on the ground of his non-appearance

before the Court on the date fixed. Learned counsel further submits that

since the bail of the petitioner was cancelled and non-bailable warrants

were issued, therefore, he did not appear on the next date of hearing and

now the next date fixed for the trial Court is 15.03.2023 for his appearance.

Learned counsel further submits that there was no intention on the part of

the petitioner to delay the proceedings and the absence of the petitioner

before the trial court was neither intentional nor deliberate but on account

of the reason stated above. It is submitted that the petitioner is ready and

willing to surrender before the trial Court and join the proceedings, if he is

granted one opportunity to do so. Learned counsel further submits that the

petitioner undertakes to appear on each and every date before the trial court

and to abide by all the terms and conditions to be imposed by this Court or

by the trial Court.

Notice of motion.

On the asking of the Court, Mr. Vinay Kumar Gupta, Assistant

Advocate General, Punjab, who is present in the Court, accepts notice on

behalf of respondent-State and submits that since the petitioner has jumped

the bail and has not followed the conditions of bail, accordingly, he does

not deserve any indulgence; however if the petitioner is ready to surrender

then strict conditions be imposed on him.

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Heard the arguments of learned counsel for the petitioner as

well as learned counsel for the respondent-State and have also perused the

paper book as well as the impugned order.

A perusal of impugned order dated 28.07.2022 (Annexure

P-1), reflects that the trial Court proceeded to pass the order on account of

absence of petitioner on 28.07.2022. It is observed that at times, the

accused or his counsel canbe prevented by sufficient reasons to put

anappearance before the Court on a given date and every such absence

cannot be necessarily construed as a deliberate and willful absence.

This Court vide order dated 18.07.2018, passed in CRM-M-

29461-2018, titled as "Naveen Rao Vs. Central Bureau of Investigation

(CBI) ACB, Chandigarh, while considering somewhat similar issue,

observed as under:-

"- x - x -

Keeping in view the conduct of the petitioner as he came back immediately after a period of 20 days, it appears that there was no intention on the part of the petitioner to remain absent. It can be an inadvertent mistake/lapse on his part. Moreover, the petitioner is NRI and ready to abide by all terms and conditions to be imposed by this Court or by the trial Court.

Same issue was there before the Kerala High Court in Mahesh vs. State of Kerala, 2011 (1) Cri.C.C. 834 wherein the condition of bail was violated and due to absence of the accused-petitioner, bail was cancelled. The relevant portion of said judgment is reproduced as under: -

"20. To cancel the bail under section 437(5) or 439(2) of the Code very cogent and overwhelming reasons are also to be stated. The Court shall not cancel bail in a routine manner, under section 437(5) or 439(2)

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of the Code, as per law. This is the settled position of law. But, the position under Section 446-A of the Code is totally different. If the Magistrate Court is satisfied that there is breach of condition of bail bond and thereby, forfeiture of the bond, the bond automatically stands cancelled under Section 446-A of the Code.

21. However, a mere violation of condition in the bail order will not lead to automatic cancellation of bail bond under Section 446-A of the Code. Apart from violation of condition in the bail order, the Court must also be satisfied that the bond is forfeited then alone, bail bond would stand cancelled and the accused can be proceeded against. It is the forfeiture of the bail bond which is crucial under Section 446-A of the Code. If the breach of condition is not wilful and is due to reasons beyond his control, it cannot be said that there is forfeiture of bond. The question is dealt with in Rajan v. State of Kerala, 2006 (4) KLT 429 and it is held thus:

"A bond for appearance can be said to be forfeited, only if there is a wilful default on the part of the accused in not appearing before the Court. It is needless to say that an accused can be absent in Court due to various reasons on a particular occasion. When the counsel files an application, it follows that the accused was vigilant and he had taken steps to instruct his counsel to file an application. Such an accused cannot he said to have forfeited the bond by reason of any wilful default. It is only in cases where there is wilful default on the part of the accused to appear in Court, forfeiture of bond will follow and penalty will incur."

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22. In State of Kerala v. Anil Kumar, 2005 (4) KLT SN 59, referring to cancellation of bail, this Court held thus: "an innocent violation of any condition imposed by the Court will not ipso facto lead to cancellation of bail under section 439(2) Criminal Procedure Code. The crucial and vital question is whether there has been deliberate, contumacious and unjustified infraction of the conditions imposed by the Court". It is needless to say that if the Court cannot cancel bail, if violation of condition is not wilful or deliberate, it is only reasonable to hold that such violation (which is not wilful or intentional) shall also not lead to an automatic cancellation of bail bond under Section 446-A of the Code."

In the present case also, the bail/surety bonds have been cancelled as the petitioner left India without prior permission of the Court. An application for exemption from personal appearance was also moved, which was dismissed. The petitioner is NRI and he went abroad without seeking any permission from the Court, which has been stated to be inadvertent as he did not go through the terms and conditions of bail but the circumstances were beyond his control. The petitioner immediately came back to India and came to know that his bail bonds have been cancelled. There was no intention on his part to remain absent or to avoid the Court proceedings. The petitioner remained ill when he was abroad, remained there for a period of 20 days and could not come back immediately.

Accordingly, the present petition is allowed and the petitioner is directed to surrender before the trial Court on the next date of hearing i.e., 19.07.2018 by furnishing an undertaking before the trial Court that he will attend the Court proceedings regularly and will not leave the country without prior permission of the Court and abide by all

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terms and conditions to be imposed by the trial Court. He is directed to be released by the trial Court by furnishing adequate surety/bail bonds to its satisfaction subject to payment of cost of `25000/- to be deposited with the trial Court.

- x - x -"

In the present case also, the bail alongwith bonds of the

petitioner have been cancelled as he did not appear on the date fixed before

the trial Court which is due to inadvertence, as stated above.

Keeping in view the peculiar facts and circumstances of the

case and considering the fact that the petitioner is ready and willing to

surrender and join the proceedings and also to abide by all terms and

conditions to be imposed by this Court or by the trial Court; this Court is

inclined to afford one last opportunity to the petitioner to mend his ways.

Moreover, joining of proceedings by the petitioner, would ensure

finalization of proceedings.

In view of the above, the present petition is disposed of with a

direction to the petitioner to surrender before the trial Court on or before

30.12.2022 by furnishing an undertaking before the trial Court that he will

attend the Court proceedings regularly and will not leave the country

without prior permission of the Court and abide by all terms and conditions

to be imposed by the trial Court. In case, the petitioner surrenders before

the trial Court on or before 30.12.2022, then he be released by the trial

Court upon his furnishing adequate surety/bail bonds to its satisfaction

subject to payment of cost of Rs. 20,000/- to be deposited with the trial

Court in the Legal Aid Fund.

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In case, the petitioner does not appear before the trial Court on

or before the date fixed i.e. 30.12.2022, then the instant petition shall be

deemed to have been dismissed.

At the time of release of the petitioner, Station House Officer,

Police Station Jandiala Guru, District Amritsar Rural shall be informed.

The petitioner shall furnish his mobile number to the Station House Officer;

keep his mobile's location on and also appear in the concerned police

station on every alternate Monday till the conclusion of the trial.

Disposed of in the above-said terms.

December 14, 2022                                     (HARSH BUNGER)
gurpreet                                                  JUDGE



               Whether speaking/reasoned:                Yes/No
               Whether reportable:                       Yes/No





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