Dinesh @ Diniya vs State Of Rajasthan

Arun Monga, J

Petitioner/accused seeks quashing of an order dated 09.01.2024 passed by the Learned Special Judge, SC/ST (POA) Act cases Barmer in case No.123/2016 pursuant to FIR No.48/2015 dated 15.04.2015 registered at Police Station Dever, District Rajasmand, vide which, learned trial court forfeited his bail bonds, arrest warrant was issued against him and proceedings under Section 446 Cr.P.C. have been initiated separately against his surety.

Learned counsel for the petitioner submits that the petitioner went outside the State to earn his daily livelihood and, as a result, was unable to appear before the learned trial Court on the day impugned order was passed. On the fateful day, i.e., 09.01.2024, the petitioner had requested his counsel to cause appearance on his behalf and take appropriate steps for exempting his personal presence. However, as it turned out, due to some miscommunication, a written application seeking his exemption could not be filed by the learned counsel, and his oral request was declined by taking a rather harsh view, with the impression gathered by the learned trial court that the petitioner was deliberately not appearing. Learned counsel for the petitioner argues that the petitioner is a poor person and can ill-afford to travel for each hearing, and has no intention of avoiding the court process, as he has otherwise been appearing in the trial court as and when required. 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 Section 446 of the Cr.P.C. against his surety. 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.

Learned PP would support the impugned order passed by both the learned court below for the reasons stated therein. Reference may be had to a judgment in Mohammad Haras Vs. State of Punjab CRM-M No.31385/2023, decided on 07.07.2023

relevant whereof, for ready reference, is reproduced as below :-

“5. Heard.

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.

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.

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.

Petition is accordingly allowed.”

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. 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.”

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.

Consequently, the impugned order dated 09.01.2024 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.

Disposed of accordingly.

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