Amit Kumar Dave vs State Of Rajasthan (2024:Rj-Jd:44036)
2024 Latest Caselaw 9309 Raj

Rajasthan High Court - Jodhpur

Amit Kumar Dave vs State Of Rajasthan (2024:Rj-Jd:44036) on 24 October, 2024

[2024:RJ-JD:44036]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Criminal Misc(Pet.) No. 7523/2024
Amit Kumar Dave S/o Sh. Prithvi Raj Dave, Aged About 40 Years,
R/o Keetnod, Teh. Pachpadra, Dist. Barmer.
                                                                         ----Petitioner
                                    Versus
1.       State Of Rajasthan, Through Pp
2.       Smt. Roopkanwar W/o Sh. Ummedsingh, R/o Guda
         Malani, Dist. Barmer. At Present Veela, Behind Purohit
         Chhatrawas, Nai Brahmpuri, Jalore, Teh. And Dist. Jalore.
                                                                      ----Respondents


For Petitioner(s)         :     Mr. S.P. Sharma.
For Respondent(s)         :     Mr. Shri Ram Choudhary, P.P.


         HON'BLE MR. JUSTICE ARUN MONGA

Order 24/10/2024

1. Petitioner/accused seeks quashing of orders dated

10.09.2024 passed by the Learned Additional Chief Judicial

Magistrate No.1, Jalore, in Criminal Case No.4745/2014, pending

under Section 138 of N.I. Act, for dishonour of a cheque for an

amount of Rs.9,20,000/-. Learned trial court has forfeited his bail

bonds, declared him as absconder, arrest warrant was issued

against him, initiated proceedings under Section 82 & 83 Cr.P.C.

against him and under Section 446 Cr.P.C. against his surety.

2. Heard and perused the case file as well as the order

impugned herein.

3. On a query posed by the Court regarding the default caused

by the petitioner in his personal presence, learned counsel states

that on 10.09.2024 and 11.09.2024, the petitioner had to attend

to his ailing wife, who suddenly taken very ill. Under these

circumstances, he had requested his counsel to take appropriate

steps by filing an application to seek his exemption from personal

appearance. However, the learned trial court took a harsh view of

[2024:RJ-JD:44036] (2 of 8) [CRLMP-7523/2024]

the matter, under the impression that the reasons stated by the

petitioner in the application were not genuine. He further states

that the petitioner had no intention at any stage of causing a

delay in the proceedings and that it was under these

circumstances, which were beyond his control, that he could not

appear on the fateful day, as there was no one else in the family

to look after his wife. The petitioner's inability to appear was due

to unforeseen circumstances beyond his control. Therefore, his

arrest warrant may be converted into bailable warrant, he argues.

4. Learned PP would support the impugned order passed by

both the learned court below for the reasons stated therein.

5. Reference may be had to a judgment in Mohammad Haras

Vs. State of Punjab1 relevant whereof, for ready reference, is

reproduced as below :-

"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."

6. As regards the directions issued by the learned trial court to

initiate proceedings under Section 82/83 of Cr.P.C. against the

petitioner coupled with invocation of section 446 of Cr.P.C. against

[2024:RJ-JD:44036] (3 of 8) [CRLMP-7523/2024]

the sureties, the same are also a serious procedural fallacy

committed by the learned magistrate and cannot be sustained.

7. Reference may be had to two different judgments i.e. one on

the guidelines enunciated qua invocation of Section 82/83 of

Cr.P.C. and the other is with respect to guidelines enunciated for

following the procedure to take steps under Section 446 Cr.P.C.

Relevant of both judgment is hereinbelow:-

Pradeep Kumar Vs. State of Punjab and Anr. 2:-

"13.1 The declaration of an individual as a proclaimed person or offender, as contemplated under Section 82 of the Code of Criminal Procedure (hereafter referred to as 'the Code'), carries with it the consequential implication of attachment and sale of his property as delineated in Sections 83, 84, and 85 of the Code. Furthermore, such a declaration triggers the criminal liability of the individual under Section 174-A of the Indian Penal Code, with a potential sentence of up to seven years of imprisonment, coupled with a monetary penalty. This, in turn, has profound and far-reaching ramifications, significantly affecting the fundamental rights to life, liberty and property of the concerned individual. Hence, it becomes imperative that the Courts meticulously adhere to the statutory requirements in letter and spirit both, duly reflecting their compliance on the record prior to pronouncing an individual as a proclaimed person or offender and invoking criminal liability under the aforementioned section.

13.2 Section 82(1) of the Code mandates that a proclamation shall require the concerned individual to appear at a specified place and time, with no less than thirty days' notice from the date of proclamation publication. Sub-Section (2) provides comprehensive guidance on the publication of proclamations, while sub-Section (3) firmly establishes that a written statement by the issuing Court shall be conclusive evidence of compliance with the requirements of this Section. Additionally, Section 83(1) empowers the Court, to order the attachment of any property, whether movable or immovable, belonging to the proclaimed individual, for reasons recorded in writing. 13.3 In cases where an accused person fails to appear even after publication of the proclamation under Section 82(1) of the Code, the Court can initiate action as per procedure outlined in Sections 83, 84, and 85 of the Code for the attachment and sale of their property. Furthermore, the Court may proceed with the

2 Punjab & Haryana High Court - CRM-M-41656-2023(O&M)- dated 23.08.2023

[2024:RJ-JD:44036] (4 of 8) [CRLMP-7523/2024]

examination of witnesses in the individual's absence, as stipulated in Section 299 of the Code.

x-x-x-x-x

19. Before parting with the case, having had the benefit of judgment in Sunil Tyagi supra, it is considered desirable to frame guidelines for issuance of a proclamation under Section 82 of the Code of Criminal Procedure, it's publication, declaring the concerned person as 'proclaimed person' or 'proclaimed offender' and where considered necessary, to invoke criminal proceedings against person for offence under Section 74-A of IPC (Sic 174-A). Accordingly, the following guidelines are being framed:

Issuance of proclamation :

i. Preceding the issuance of the proclamation under section 82 Cr.P.C., the Court must deliberate upon its previous efforts to secure the presence of the through other legally permissible means. These efforts encompass the issuance of summons, the execution of bailable and/or non-bailable warrants against the accused. The Court must thoroughly document the results stemming from these endeavours, accompanied by pertinent facts and comprehensive details. It is incumbent upon the Court to satisfactorily ascertain that the individual in question has indeed absconded or is concealing himself to evade execution of warrant of arrest. ii. The phrase "reason to believe," as articulated in Section 82 of the Code of Criminal Procedure, signifies that the Court must derive its belief from the available evidence and materials that the concerned person has absconded or is concealing himself to evade execution of warrant of arrest.

iii. Furthermore, in the proclamation, it must be set forth as to where and when the concerned individual must present himself. A designated location and time must be stipulated. Importantly, the specified date and time for appearance should not be less than a thirty-day from the date of publication of the proclamation. Publication of proclamation-

iv. The publication of a proclamation, as outlined in Section 82(2) of the Code of Criminal Procedure, mandates adherence to all three prescribed modes, namely:

(a). The public reading of the proclamation in a conspicuous location within the town or village where the individual ordinarily resides.

(b) The affixation of the proclamation at a prominent spot at the individual's house or homestead.

(c) The display of the proclamation at a prominent location within the precincts of the court house.

v. All the aforesaid three modes of publication of a proclamation have to be adhered to. Failure to follow all or any of them renders the proclamation invalid in the eyes of the law. This is because the three sub-clauses (a) to (c) are mutually exclusive. vi. If the Court so feels, in addition to the aforementioned trio of methods for securing the accused's presence, it may, at its discretion, also direct the publication of a copy of the proclamation in a daily newspaper circulating within the geographical area where the said individual ordinarily resides.

[2024:RJ-JD:44036] (5 of 8) [CRLMP-7523/2024]

vii If the Court, in its discretion orders publication of proclamation in newspaper, it shall also direct that the newspaper agency, upon the publication of the proclamation in the newspaper, shall dispatch a copy thereof to the accused's ad dress, as is the procedure observed in civil matters, in terms of Order 5 Rule 10 of the Code of Civil Procedure. In essence, this supplementary measure ensures that the accused is duly apprised of the legal proceedings against him.

Declaration as "proclaimed person" or "proclaimed offender:

viii. Prior to the declaration of the concerned individual as a "proclaimed person" or "proclaimed offender," the Court shall pass a speaking order stating relevant facts and record its satisfaction that the proclamation has been duly and properly published in the prescribed manner.

ix. Furthermore, it must ensure that a period of not less than thirty days has expired between the date of publication of the proclamation and the date indicated in the proclamation for the individual's appearance. If the interval between the proclamation's publication and the date specified therein for appearance falls short of thirty days, such a publication of the proclamation cannot serve as the foundation for designating the individual in question as a "proclaimed person" or "proclaimed offender."

Varinder Singh Vs. State of Punjab3:-

"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.

3 Punjab & Haryana High Court - 2023:PHHC:104379

[2024:RJ-JD:44036] (6 of 8) [CRLMP-7523/2024]

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.

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."

8. The learned trial court has observed in its order assailed

herein that in the past hearings also, petitioner had moved

applications to seek exemption of personal presence which inter

alia was the basis of rejecting his application, stating that the

reasons assigned for his absence did not seem to be genuine.

However, I am of the view that presence of an accused particularly

in a matter of the kind in hand, where proceedings are semi-

criminal/civil in nature, should ordinarily not be insisted upon, if

an application is moved for a particular hearing, unless the trial

[2024:RJ-JD:44036] (7 of 8) [CRLMP-7523/2024]

court needs to either examine the under-trial or his statement is

to be otherwise recorded for proceeding further in the matter.

9. Reference may also be had to a judgment in case title Arun

Solanki Vs. State4, which was coincidentally rendered by me in

somewhat similar circumstances, wherein, the learned Magistrate

though accepted the application seeking exemption from

appearance but imposed a cost of Rs.5,000/- apart from certain

other conditions. Relevant excerpts / observations from from the

said order, are as below:

"9. The learned trial court's decision thus reflects a misapplication of judicial discretion. The discretionary power of a court must be exercised judiciously and with due consideration of the circumstances. In this case, the absence of any conduct warranting such stringent conditions by the petitioner indicates an arbitrary use of discretion, thereby necessitating correction.

10. The conditions imposed go beyond the scope of what is necessary to secure the attendance of the accused, as outlined in relevant procedural laws. The trial court's decision appears to contravene established principles under Sections 205 [corresponding with 228 of BNSS] and 317 [corresponding with 355 of BNSS] of the Criminal Procedure Code, which allow for exemptions from personal appearance without onerous conditions when justified by circumstances.

11. The learned trial court, therefore, should have exercised caution before imposing costs on the petitioner. The imposition of a cost appears arbitrary, as the matter was neither scheduled for recording the petitioner's statement nor did the petitioner in any way contribute to the delay in the trial, which was set for prosecution evidence. In fact, since the prosecution's evidence was not present on the scheduled day, the trial court issued bailable warrants against the said witness. The petitioner, on the other hand, took all necessary precautions to ensure that he neither should show any disrespect to the court nor cause any delay in the proceedings, and thus instructed his counsel to file an application seeking exemption from personal appearance in accordance with law.

12. It is undeniable that attending court proceedings requires a person to take time off work, potentially leading to 4 Rajasthan High Court - S.B. Criminal Misc. Petition No.4880/2024, dated 26.07.2024

[2024:RJ-JD:44036] (8 of 8) [CRLMP-7523/2024]

a loss of livelihood. The petitioner's counsel rightly asserts that the petitioner is barely able to earn his livelihood, and being present in court means forfeiting his daily wage, which in turn causes his entire family to suffer the consequential penury and hunger.

13. Being unmindful of the above, the learned trial court, without providing any justification for imposing costs on the petitioner, though allowed the exemption application but required the petitioner's parents to file an affidavit, in addition to directing the petitioner to remain present at every hearing, regardless of whether it was necessary.

14. The impugned order is thus clearly arbitrary and must be set aside. It is so ordered.

15. In the parting I may hasten to add that the presence of an under-trial is not to satisfy the ego of the court but to ensure that he can safeguard his interests during the trial, and his absence should not prejudice his case or jeopardize his right to a fair trial. Imposing such irrational conditions in a rigid manner, even when the accused's presence is not required, is completely unwarranted. An under-trial/accused's personal presence thus should not be insisted upon when it is not necessary for the progress of the trial.

16. It is also made clear that any future application for exemption filed by the petitioner shall be dealt with in accordance with law. He is not required to be present at every hearing unless it is explicitly made necessary by the trial court."

10. Resultantly, as an upshot of my discussion and in the light of

judgments, ibid, the impugned order dated 10.09.2024 is set

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

bonds of his sureties are restored subject to payment of

Rs.5,000/-, as cost, to be paid to the complainant. Trial to proceed

further, in accordance with law.

11. Disposed of accordingly.

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

(ARUN MONGA),J 90-Sumit/-

                                   Whether Fit for Reporting:                Yes / No








Powered by TCPDF (www.tcpdf.org)