Rajasthan High Court - Jodhpur

Mukesh Kumar vs State Of Rajasthan (2024:Rj-Jd:41608) on 10 October, 2024

[2024:RJ-JD:41608]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Criminal Misc(Pet.) No. 6910/2024

Mukesh Kumar S/o Hanuman Prasad Ji Sharma, Aged About 43
Years, R/o Amarwasi No.10, Pratap Nagar, Jaipur, Rajasthan.
                                                                    ----Petitioner
                                    Versus
1.       State Of Rajasthan, Through Pp
2.       Sanjay Kumar S/o Bhanwar Lal Ji Jai, R/o Amarwasi Police
         Station Hanuman Nagar, District Bhilwara, Rajasthan.
                                                                 ----Respondents


For Petitioner(s)         :     Mr. Bhagat Dadhich
For Respondent(s)         :     Mr. Vikram Singh Rajpurohit, PP



               HON'BLE MR. JUSTICE ARUN MONGA

Order

10/10/2024

1. Petitioner accused seeks quashing of order dated 31.08.2024

passed by learned Additional Chief Judicial Magistrate, Jahajpur,

District Bhilwara in Criminal Regular Case No. 292/2015 pending

under Sections 420, 467, 468, 406 and 120-B of IPC. Learned trial

Court has forfeited the bail bonds of the petitioner and directed to

initiate the proceedings under Section 446 Cr.P.C. (corresponding

Section 491 of BNSS) vide the order impugned herein.

2. On a Court query posed to learned counsel for the petitioner

as to why the petitioner / accused did not appear before the

learned trial Court on the fateful date, he submits that the

petitioner since works in Indore and he was in extreme difficulty to

leave his work and appear before the Court on the assigned date

of hearing and therefore had instructed his counsel representing

him before the trial Court to seek short accommodation by taking

[2024:RJ-JD:41608] (2 of 4) [CRLMP-6910/2024]

appropriate steps. However, as luck would have it, when the case

was called out, his counsel was also held up and could not appear

at that time before the Court which led to passing of the impugned

order. Learned counsel informs that Indore to Bhilwara is 383 kms

and it takes about 8 hours to reach one way. Despite these

circumstances, the learned trial Court ordered the forfeiture of his

bail bonds. Additionally, the court initiated proceedings under

Section 446 Cr.P.C. (corresponding Section 491 of BNSS) against

his surety. The petitioner's inability to appear on the fateful day

was due to unforeseen circumstances beyond his control.

Therefore, his arrest warrant may be converted into bailable

warrant, he urges.

3. Learned PP would support the impugned order passed by

both the learned court below for the reasons stated therein.

4. Reference may be had to Mohammad Haras Vs. State of

Punjab1, relevant thereof, for ready reference, is reproduced as

below :-

"5. Heard.

6. No doubt, learned trial Court has got discretion to cancel the bail, however, it is well settled that before passing such an order, Court is required to issue notice to the accused so as to afford him an opportunity to explain as to why the bail should not be cancelled. Such course has not been adopted by learned Judge, Special Court, Sangrur in the instant case. On this ground alone, impugned order to the extent of cancellation of bail deserves to be set aside.

7. Moreover, cancellation of bail is a serious matter and can have significant impact on the life of a person. Matters of personal liberty ought not to be taken so lightly and in such mechanical manner as in the case herein.

8. In the premise, impugned order is set aside. Earlier bail order stands revived on bail bond and surety bond already furnished by petitioner before learned trial Court. Petitioner is directed to join proceedings before learned trial Court within three weeks from today and shall continue to appear before learned trial Court without default.

9. Petition is accordingly allowed."

1 Punjab and Haryana High Court:- CRM-M No.31385/2023, decided on 07.07.2023

[2024:RJ-JD:41608] (3 of 4) [CRLMP-6910/2024]

5. As regards the directions issued by the learned trial Court to

proceed against the sureties under Section 446 Cr.P.C.

(corresponding Section 491 of BNSS), the same is also a serious

procedural fallacy committed by the learned trial Magistrate and

cannot be sustained. In a case titled Varinder Singh Vs. State

of Punjab2, it has been held thus:-

"9. In the light of the statutory provisions of sections 444 and 446 of the Code and, the observations recorded above, I am of the opinion that the following procedure and principles governing the discharge of a surety and when necessary, for forfeiting the bond and the further steps to be taken for imposing the penalty upon the surety need to be kept in mind by the courts :-

A. DISCHARGE OF SURETY A.1 . Surety can seek discharge at any stage : An individual who has stood surety for someone released on bail has the right to apply to the Court to be discharged from his responsibilities. He can seek a complete discharge from the bond.

A.2. Warrant of Arrest for accused: Upon receiving the application from the surety, the Court will issue a warrant of arrest for the person concerned who was released on bail to be produced before the Court.

A.3 Appearance of the bailed Person: Once the person concerned is brought before the Court through the warrant of arrest or otherwise appears, the Court shall direct the surety bond to be discharged.

A.4. Finding New Sureties: Once the Court orders the discharge of the bond for the surety, the person who was released on bail will be required to find other sufficient surety.

A.5. Consequences of Failure: If the person who was released on bail fails to find other sufficient surety as required, the Court may commit him to jail.

B. FOR FORFEITING THE SURETY BOND AND IMPOSING PENALTY B.1 Forfeiture of bond and proof :- If a bond is executed for the appearance of an individual before a court or for the production of property and it is proven to the satisfaction of the court that the bond has been forfeited, the court must record the grounds for such proof. Similarly, if a bond is forfeited in any other context, the court must also record the grounds for forfeiture.

B.2 . Notice and penalty :- The court may then call upon the person who is bound by the bond (surety) to either pay the penalty specified in the bond or to show cause why the penalty should not be paid. If sufficient cause is not shown and the penalty is not paid, the court can take action to impose the penalty.

2 Punjab and Haryana High Court:- 2023:PHHC:104379

[2024:RJ-JD:41608] (4 of 4) [CRLMP-6910/2024]

B.3 Discretionary Remission :- The court has the discretion to remit (reduce) a portion of the penalty and enforce payment only for the remaining amount, implying that forfeiture of the bond by itself does amount to imposition of the penalty and a specific order has to be passed for imposing penalty.

B.4 Civil imprisonment in default of payment of penalty If the penalty imposed is not paid or cannot be recovered, the surety may be liable for imprisonment in a civil jail for a period up to six months.

B.5. Surety's death :- If a surety to a bond dies before the bond is forfeited, his estate is relieved of any liability related to the bond. B.6. Use of Conviction as evidence :- If a person who has provided security under section 106 or section 11 or section 360 of the Code 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 sectin 448 of the Code (for a minor), a certified copy of the court's judgment can be used as evidence against the surety. The court will presume that the offense was committed by the same person unless evidence to the contrary is provided."

6. In light of the aforesaid, the impugned order directing the

forfeiture of the bail-bonds of the petitioner accused and initiating

proceedings against his surety under Section 446 Cr.P.C.

(corresponding Section 491 of BNSS), ibid, has to be necessarily

set aside. It is so ordered.

7. Consequently, the impugned order dated 31.08.2024 is set

aside. The original bail bonds of the petitioner accused as well as

bonds of his sureties are restored to original and trial to proceed

further, in accordance with law.

8. Disposed of accordingly.

9. Pending application(s), if any, also stand disposed of.

(ARUN MONGA),J 19-DhananjayS/-