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2003 DIGILAW 680 (ORI)

UDAYANATH MOHANTY v. STATE OF ORISSA

2003-12-01

PRADIP MOHANTY

body2003
ORDER Pradip Mohanty, J. - Heard Mr. D.P. Dhal, Learned Counsel for the Petitioner and Mr. G.K. Mohanty, learned Additional Government Advocate. Perused the orders dated 7.12.1998 and 4.1.1999 passu by the learned Asst. Sessions Judge - cum - C.J.M., Ganjam - Berhampur in S.C. No. 92/97 (S.C. 245/97 GDC) and copy of the final judgment passed therein, which was filed by the counsel for the Petitioner in course of hearing. 2. The case of the Petitioner is that he stood a bailor for one Ramesh Mohanty, one of the accused in S.C. No. 92 of 1997 (S.C. 245 of 1997-GDC) on the file of the Asst. Sessions Judge-cum-C.J.M., Ganjam-Berhampur, who was granted bail by a Bench of this Court in CRMC No. 3530 of 1997 by order dated 1.12.1997 with one of the conditions that he shall attend the trial court on each date that will be fixed by the trial court, failing which, the said order of bail shall stand automatically cancelled and the bail amount and the property security shall be forfeited forthwith. On 20.11.1998, due to his ill-health, said accused Ramesh Mohanty failed to appear before the trial court and, although counsel appearing for him filed a petition to condone his absence, the trial court rejected the said petition and issued non-bailable warrant of arrest against him. On the very next day i.e. on 21.11.1998 accused-Ramesh Mohanty surrendered and moved an application for bail. The said application having been rejected by the trial court on 21.11.1998, the Petitioner again moved this Court by filing an application u/s 482 of the Criminal Procedure Code in Crl. Misc. Case No. 5198 of 1998. While disposing of the said application by order dated 2.12.1998 a Bench of this Court directed that if accused Ramesh Mohanty would file an application u/s 439 Code of Criminal Procedure, the trial court shall do well to allow him to be released on bail on such terms and conditions as it would deem just and proper which shall include condition for personal appearance on each date. When the matter stood thus, the present Petitioner filed an application on 15.12.1998 u/s 444 of the Code of Criminal Procedure to discharge him from suretyship and to return his documents. When the matter stood thus, the present Petitioner filed an application on 15.12.1998 u/s 444 of the Code of Criminal Procedure to discharge him from suretyship and to return his documents. The trial court by order dated 4.1.1999 rejected the said application by observing that as it was the mandate of this Court that upon violation of any of the conditions of the bail order, the bail bonds as well as property security would stand automatically forfeited, and directed to start a misc. case u/s 446 of the Code of Criminal Procedure against the present Petitioner. Feeling aggrieved by the said order, the Petitioner has approached this Court in the present revision. 3. Mr. Dhal, counsel for the Petitioner submits that there are plethora of judicial pronouncements that without giving notice to the bailor, the bail bond cannot be cancelled automatically. That apart, accused-Ramesh Mohanty having admittedly surrendered just on the next day of default, the question of cancellation of bail bond does not arise. He further submitted that no order was passed by the trial court with regard to forfeiture of bail bond. According to him, even if cancellation of bail bond and forfeiture of security is automatic, the trial court ought to have passed an order cancelling the bail bond and forfeiting the security. 4. Mr. G.K. Mohanty, learned Addl. Government Advocate vehemently opposed the submission of the counsel for the Petitioner and submitted that in the mandate of this Court, the trial court is justified in directing forfeiture of security and initiating proceedings u/s 446 of the Code of Criminal Procedure 5. The law is well settled that before a surety becomes liable to pay the amount of the bond forfeited, it is necessary to give him notice to sow sufficient cause and if he fails to do so, only then can the Court proceed to recover the amount (see (1988) 1 OCR 658, Puma Chandra Pradhan v. State of Orissa). Admittedly, the petition u/s 444 of the Code of Criminal Procedure was filed on 15.12.1998 with a prayer to discharge the Petitioner from suretyship and for return of his documents and the court below while rejecting the said application by order dated 4.1.1999, without giving an opportunity to show cause directed initiation of the proceedings u/s 446 of the Criminal Procedure Code against the Petitioner. It is also admitted at the Bar that the proceeding u/s 446 of the Code of Criminal Procedure is yet to be initiated against him, the Petitioner was in jail custody when the impugned order was passed and the accused-Ramesh Mohanty for whom the Petitioner stood as a bailor has been acquitted by the trial court in the meantime. 6. In the aforesaid view of the matter, since the rules of natural justice have not been observed, the trial court ought to have discharged the Petitioner from the suretyship and released his documents. The impugned order, therefore, cannot be supported and is hereby set aside. The trial court is directed to return all the documents of the Petitioner. 7. In the result, the revision is allowed. Final Result : Allowed