Rajasthan High Court - Jodhpur

Ankit Gadiya vs State Of Rajasthan (2024:Rj-Jd:43851) on 24 October, 2024

[2024:RJ-JD:43851]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Criminal Misc(Pet.) No. 6351/2024

Ankit Gadiya S/o Sh. Ramesh Chandra Gadiya, Aged About 30
Years, R/o Mahaveer Chowk, Badi Sadri, Dist. Chittorgarh, Raj.
                                                                         ----Petitioner
                                         Versus
1.       State Of Rajasthan, Through Pp
2.       Ashokpuri       S/o       Bherupuri       Goswami,           R/o     Sangesra,
         Mangalwad, Dist. Chittorgarh.
                                                                      ----Respondents


For Petitioner(s)              :    Mr. Pradeep Kumar Paliwal
For Respondent(s)              :    Mr. Vikram Rajpurohit, PP



               HON'BLE MR. JUSTICE ARUN MONGA

Order (Oral)

24/10/2024

1. Under challenge before this Court is an order dated

24.01.2023, passed by the learned Additional Sessions Judge,

No.1, Badi Sadri Camp, Nimbaheda, Chittorgarh in Criminal Case

No.60/2019, arising out of FIR No.166/2015 dated 06.07.2015,

under Sections 148, 147, 452, 149, 323, 325, 427, 435 and 436

of IPC, registered at Police Station Badi Sadri, District Chittorgarh,

vide which, learned trial court forfeited bail bonds of petitioner, his

arrest warrant was issued and proceedings under Section 446

Cr.P.C. have been initiated separately against his surety.

2. Learned counsel for the petitioner submits that the

petitioner, in connection with his business, had to go outside the

State. His counsel assured him that as and when his presence

would be required, he will accordingly be informed. But, his

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counsel did not inform him. On the fateful day, his counsel neither

filed any application seeking exemption of his presence nor

informed him about requirement of his presence. As a result, he

was unable to appear before the learned trial Court on the day

impugned order was passed. Due to some miscommunication, a

written application seeking his exemption could not be filed by his

counsel. The learned trial court, therefore, gathered the

impression that the petitioner was deliberately not appearing.

Thus, it ordered the forfeiture of his bail bonds. The petitioner's

inability to appear was due to unforeseen circumstances beyond

his control. The petitioner was not aware of arrest warrant issued

against him and as soon he was informed by his trial court

counsel, this petition has been filed. Therefore, his arrest warrant

may be converted into bailable warrant, he argues.

3. Learned Public Prosecutor would support the impugned order

passed by both the learned court below for the reasons stated

therein.

4. Reference may be had to an order passed 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.

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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."

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

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

is also a serious procedural fallacy committed by the learned trial

Magistrate and cannot be sustained. On this point as well,

guidelines enunciated in a judgment titled Varinder Singh Vs.

State of Punjab: (2023:PHHC:104379), are relevant. For

ready reference, same are reproduced hereinbelow:-

"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.

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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."

6. In light of the aforesaid, I am of the view that 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., ibid, has to be necessarily set aside. It is so

ordered.

7. Petition is allowed. The impugned order dated 24.01.2023 is

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

as bonds of his sureties are restored and trial to proceed further,

in accordance with law.

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

(ARUN MONGA),J 328-skm/-