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2000 DIGILAW 514 (ORI)

SK. YOUNUS v. STATE OF ORISSA

2000-11-13

P.K.TRIPATHY

body2000
P. K. TRIPATHY, J. ( 1 ) IN this application u/s. 482, Cr. P. C. petitioner prays to set aside the order of the learned S. D. J. M. , Bhubaneswar dated 1-5-2000 passed in G. R. Case No. 3401 of 1999. ( 2 ) THE undisputed relevant factual position is that petitioner is an accused in the said G. H. Case on the allegation of committing the offences punishable u/s. 454/506/34, I. P. C. On 7-12-1999 learned IInd Additional Sessions Judge, Khurda passed order in Criminal Misc. Case No. 178/951 of 1999, an application u/s. 439, Cr. P. C. allowing the petitioner to go on bail on furnishing cash security of Rs. 10,000/- (Rupees ten thousand ). The conditions were imposed in that order for bail which included the condition of personal appearance of the petitioner in the Court of S. D. J. M. on each date and failure to appear was to result in cancellation of the bail. On the basis of that order on 8-12-1999 petitioner was released on bail from the Court of the S. D. J. M. On 13-12-1999 petitioner did not appear in person and an application u/s. 317, Cr. P. C. was filed by his counsel on the ground of illness. In view of the directions relating to personal appearance in the order of bail passed by learned Additional Sessions Judge, learned S. D. J. M. rejected the application u/s. 317, Cr. P. C. and forfeited the cash security and issued non-bailable warrant of arrest against the petitioner. As against that order petitioner approached this Court in an application u/s. 439 (1) (b), Cr. P. C. which was registered as Criminal Misc. Case No. 125 of 2000. In that application petitioner prayed to modify the order of the Additional Sessions Judge relating to the cash security and also prayed to set aside the order of the S. D. J. M. dated 13-12-1999 which related to forfeiture of the cash security and issue of N. B. W. A. That application was heard and disposed of on 13-1-2000. Learned Judge of this Court disposed of that application by allowing the petitioners to go on bail on furnishing bail bond of Rs. Learned Judge of this Court disposed of that application by allowing the petitioners to go on bail on furnishing bail bond of Rs. 10,000/- (Rupees ten thousand) with one surety for the like amount to the satisfaction of the learned S. D. J. M. , Bhubaneswar and observed that regarding forfeiture of the cash security petitioner may approach the appropriate forum, if so advised, u/s. 449, Cr. P. C. Notwithstanding that order, petitioners filed another application u/s. 482, Cr. P. C. on 16-2-2000 and has stated by the learned counsel for the petitioner, recourse u/s. 449, Cr. P. C. was not availed by the petitioner. That application u/s. 482, Cr. P. C. was registered as Criminal Misc. Case No. 892 of 2000. That application was heard and disposed of on 24-3-2000. Hon'ble Judge considering that application, mentioned in that order that the S. D. J. M. was not at fault in passing the order dated 13-12-1999 in-asmuch as he complied to the conditions imposed by the learned Additional Sessions Judge. At the same time the Hon'ble Judge considering the plea of illness, held that there should be humanitarian consideration in favour of the petitioner for his default in his personal appearance and on that ground the order dated 13-12-1999 of the S. D. J. M. was set aside and the petitioner was directed to appear in person before the trial Court. On a perusal of that order it appears that no reference was made to the order in Criminal Misc. Case No. 125 of 2000. ( 3 ) AFTER disposal of the Criminal Misc. Case No. 892 of 2000 petitioner applied in the Court of S. D. J. M. for refund of the cash security which he had deposited on the ground that he is on bail as per the terms and conditions fixed in Criminal Misc. Case No. 125 of 2000 and the order relating to forfeiture of cash security has been set aside as per the order in Criminal Misc. Case No. 892 of 2000. Learned S. D. J. M. after hearing the parties, rejected that application on the grounds that the order passed in Criminal Misc. Case No. 125 of 2000 and the order relating to forfeiture of cash security has been set aside as per the order in Criminal Misc. Case No. 892 of 2000. Learned S. D. J. M. after hearing the parties, rejected that application on the grounds that the order passed in Criminal Misc. Case No. 892 of 2000 resulted in setting aside the order dated 13-12-1999 and thereby the order of cancelling the bail and forfeiting the cash security being set aside, the bail order of the Additional Sessions Judge again became operative and in the absence of modification of that order the cash security cannot be refunded. ( 4 ) LEARNED counsel for the petitioner while arguing the matter, reiterated the same point with a pursuasive argument to refund the cash security. Learned Standing Counsel on the other hand supported the impugned order and argued accordingly. ( 5 ) LEARNED counsel for the petitioner was unable to explain as to how and why the petitioner again approached this Court in spite of a directly speaking order being passed in Criminal Misc. Case No. 125 of 2000 in not allowing the prayer for refund of the cash or modification of the bail order dated 7-12-99. Apart from that, in the order in Criminal Misc. Case No. 892 of 2000 no order has been passed either modifying the conditions of bail or directing for refund of the cash security. Therefore, even if the petitioner prayed for the relief in instalments by approaching this Court in the aforesaid manner, then also a conjoint reading of the said two orders does not make him entitled to refund of the cash security, and in that context reasons assigned by learned S. D. J. M. not only appears to be logical but also lawful. ( 6 ) SINCE the petitioner has adopted the given practice, therefore, to make the situation harmonious this Court feels it appropriate to invoke the inherent power to streamline the matter relating to bail and the cash security in the following manner while not allowing the prayer for refund of the cash security. Petitioner shall remain on bail in terms of the order of the Additional Sessions Judge in furnishing the cash security and in addition to that furnishing the bail bond in accordance with the order in Criminal Misc. Case No. 125 of 2000. Petitioner shall remain on bail in terms of the order of the Additional Sessions Judge in furnishing the cash security and in addition to that furnishing the bail bond in accordance with the order in Criminal Misc. Case No. 125 of 2000. Save and except the condition of personal appearance on each date, the other conditions imposed by learned Addl. Sessions Judge shall be valid and binding on him and he and his surety shall be bound by that condition. So far as the personal appearance of the petitioner on each date is concerned, that condition shall be operative with a rider that on sporadic occasions the lower Court may consider the prayer for representations if shall be satisfied about the genuineness of the grounds advanced. In that context, consideration of sufficiency of grounds shall be a matter of subjective satisfaction of the lower Court. In that respect it is believed that the lower Court shall neither be unduly strict nor unreasonably liberal. In view of the above order (in the preceding sub-paragraph) the petitioner shall either execute a fresh bail bond along with his surety or else he and his surety shall file an affidavit each undertaking to abide by the aforesaid conditions and forfeit the security amount in case of breach of any of the conditions. ( 7 ) IT is believed that the above modified order is sufficient to take care of the whole matter relating to bail and the bail bonds. In the event petitioner shall desire to move for modifying the conditions relating to furnishing of cash security, then he may file a properly constituted application in that respect by advancing sufficient reasons in support of that and if such application shall be filed that may be considered on its own merit. The Criminal Misc. Case is disposed of accordingly. Order accordingly.