Mukesh Jha vs State Of Punjab
2022 Latest Caselaw 17611 P&H

CRM-M-58421-2022                                                          -1-
232

      IN THE HIGH COURT OF PUNJAB & HARYANA
                  AT CHANDIGARH

                                         ****

CRM-M-58421-2022 Date of Decision: 23.12.2022

Mukesh Jha ..... Petitioner

Versus

State of Punjab ..... Respondent

CORAM: HON'BLE MR. JUSTICE HARSH BUNGER

Present: Mr. Kapil Khanna, Advocate for the petitioner.

*****

HARSH BUNGER J. (ORAL)

Prayer in the present petition filed under Section 482 Cr.P.C. is

for quashing of order dated 26.07.2022 (Annexure P-4), passed by the

Sessions Judge, Jalandhar in FIR No.186 dated 27.10.2021 (Annexure P-1),

under Sections 34 and 379-B IPC, registered at Police Station Division

No.5, District Jalandhar, whereby bail of the petitioner was cancelled, his

bail bonds/surety bonds were forfeited to the State and non-bailable

warrants were also issued against him.

Learned counsel for the petitioner submits that after arrest of

the petitioner in the present case, he was granted bail by the Sessions Judge,

Jalandhar on 21.12.2021 and thereafter, he was regularly appearing on

various dates before the trial Court. While referring to Annexure P-2

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(certificate), on 26.07.2022, learned counsel submits that petitioner could

not appear before the Court as he was admitted at Jeevan Jot Foundation for

his treatment, which fact was informed to the counsel representing him in

the trial Court and the counsel was requested to move an application for

exemption from personal appearance on the said date (26.07.2022),

however, the same was not done by the counsel, and consequently, bail of

the petitioner was cancelled, his bail bonds/surety bonds were forfeited to

the State and non-bailable warrants were also ordered to be issued against

him by the trial Court on 26.07.2022. Learned counsel submits that there

was no intention on the part of petitioner to delay the proceedings and his

absence before the trial court was neither intentional nor deliberate but for

the aforesaid reason. It is also stated that the next date before the trial Court

is now fixed for 04.01.2023. He further submits 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 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.

Learned State counsel opposes prayer of the petitioner raised in

the instant petition by stating that he has jumped the bail and has not

followed the conditions of bail, thus petitioner is not entitled to any relief.

I have 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 order dated 26.07.2022 (Annexure P-4) reflects

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that the trial Court proceeded to pass the impugned order on account of

absence of petitioner on 26.07.2022. It is observed that at times, the accused

or his counsel can be prevented by sufficient reasons to put an appearance

before the Court on a given date and every such absence cannot be

necessarily construed as a deliberate and willful absence.

This Court vide judgment 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) 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 3 of 7

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."

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 4 of 7

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 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     -"
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In the present case also, the bail of the petitioner was cancelled

and his bail bonds/surety bonds were forfeited to the State as he did not

appear on the date fixed i.e. 26.07.2022, before the trial Court because of

the reason stated above.

Keeping in view the fact that the petitioner was regularly

appearing before the trial Court but on 26.07.2022, he could not appear due

to the reason that he was admitted at Jeevan Jot Foundation for treatment; it

appears that there was no intention on his part to remain absent. Moreover,

joining of proceedings by the petitioner, would ensure finalization of

proceedings.

Accordingly, this Court is inclined to afford one opportunity to

petitioner to mend his ways.

Considering the above, the present petition is disposed of with

a direction to the petitioner appear before the trial court on or before

04.01.2023 and upon his appearance, the Court shall release him on bail

subject to his furnishing fresh bail bonds/surety bonds to its satisfaction and

on payment of cost of Rs.10,000/- to be deposited by the petitioner, with the

concerned District Bar Association. The petitioner shall also give his

undertaking by way of affidavit before the Court that he will attend the

Court proceedings regularly unless specifically exempted by the Court.

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

or before the date fixed, i.e. 04.01.2023, then the instant petition shall be

deemed to have been dismissed.

The petitioner shall furnish his mobile number to the Station

House Officer, keep his mobile's location on and also appear in the 6 of 7

concerned Police Station on every alternate Monday till the conclusion of

the trial.

Disposed of in the abovesaid terms.

23.12.2022                                      (HARSH BUNGER)
Apurva                                              JUDGE


             1. Whether speaking/reasoned :           Yes/No

             2. Whether reportable             :      Yes/No




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