Rajasthan High Court - Jodhpur
Sohan vs State Of Rajasthan (2024:Rj-Jd:43990) on 24 October, 2024
[2024:RJ-JD:43990]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 7534/2024
Sohan S/o Kalu Ram, Aged About 44 Years, R/o Hatholiya Pada
Bori, Ps Gadhi, Teh. Gadhi, Dist. Banswara.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Ms. Aditi Sharma a/w Mr. Sampat
Prajapat.
For Respondent(s) : Mr. SR Choudhary, PP.
HON'BLE MR. JUSTICE ARUN MONGA
Order(Oral)
24/10/2024
1. Petitioner/accused seeks quashing of order dated 12.02.2007
passed by the Learned Chief Judge (Junior Division) and Judicial
Magistrate (First Class), Garhi, District Banswara, in Regular Case
No.401/1998, pending under Section 457 & 380 of IPC. 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. Given that the order impugned herein is of year 2007, in
response to a query posed by the Court regarding the delay,
learned counsel for the petitioner points out that the petitioner is
an immigrant labourer who keeps traveling from one State to
another in search of work. Throughout this time, he was not in
[2024:RJ-JD:43990] (2 of 7) [CRLMP-7534/2024]
Rajasthan and was unaware of the pending proceedings against
him. She states that he was never served with any summons or
warrants in the past, therefore, he could not appear before the
court. In the interregnum, she points out that all the other
accused stand acquitted.
4. On the merits of the allegations, the petitioner is confident
that upon his appearance, he shall be metted with the same
treatment as the other co-accused, given that the role attributed
to the petitioner is much lesser. Despite these circumstances, the
learned trial court did not consider the petitioner's grievance and
ordered the forfeiture of his bail bonds. Additionally, the court
initiated proceedings under Sections 82 & 83 Cr.P.C. against him
and under Section 446 of the Cr.P.C. against his surety. The
petitioner's inability to appear was due to unforeseen
circumstances beyond his control, she contends.
5. Learned PP would support the impugned order passed by
both the learned court below for the reasons stated therein.
6. 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.
[2024:RJ-JD:43990] (3 of 7) [CRLMP-7534/2024]
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."
7. 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
the sureties, the same are also a serious procedural fallacy
committed by the learned magistrate and cannot be sustained.
8. 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
2 Punjab & Haryana High Court - CRM-M-41656-2023(O&M)- dated 23.08.2023
[2024:RJ-JD:43990] (4 of 7) [CRLMP-7534/2024]
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
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.
[2024:RJ-JD:43990] (5 of 7) [CRLMP-7534/2024]
(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.
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
3 Punjab & Haryana High Court - 2023:PHHC:104379
[2024:RJ-JD:43990] (6 of 7) [CRLMP-7534/2024]
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.
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."
10. Resultantly, in the light of judgments, ibid, the impugned
order dated 12.02.2007 is set aside. The original bail bonds of the
petitioner accused as well as bonds of his sureties are restored.
[2024:RJ-JD:43990] (7 of 7) [CRLMP-7534/2024]
The petitioner is directed to appear before the learned trial court
within four weeks. 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
99-/Jitender//-
Whether fit for reporting - yes / No.
Powered by TCPDF (www.tcpdf.org)
