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2017 DIGILAW 907 (KAR)

JAWAZ ALIAS MOHAMMED JAWAZ v. STATE OF KARNATAKA

2017-06-07

K.N.PHANEENDRA

body2017
JUDGMENT : K.N. Phaneendra, J. Perused IA 2/17 and the affidavit filed in support of the application. Delay of 192 days in preferring the appeal is condoned. Consequently, IA 2/17 is allowed. 2. The petitioner called in question the order dated 19.09.2016, passed in Cri.Misc.No.185/2016, by the Principal District & Sessions Judge, Dakshina Kannada. 3. Heard the learned counsel for the appellants and the learned HCGP, who takes notice for the respondent. 4. The order of the trial court reads as follows : "Properties of R1 and R2 are attached. The respondents stood as surety for the accused by executing bail bond for Rs. 50,000/- each. Respondents failed to produce the accused and also failed to offer explanation. Their bail bond already forfeited and their properties are attached. Issue sale proclamation for Rs. 50,000/- each against the properties of R1 and R2 returnable by 5-12-2016. 5. Learned Sessions Judge has observed that the petitioners have failed to offer any explanation with reference to the forfeited bond. It is evident that the appellants stood as sureties for the appearance of the accused by executing their bail bonds for a sum of Rs. 50,000/- each. The said bond was forfeited and Criminal Miscellaneous petition was instituted and notices have been issued calling upon them to show cause as to why that amount should not be treated as penalty and recovered. 6. Learned counsel brought to my notice that, in fact, the appellants have filed their objections and sought for remission of the amount, out of the amount treated as penalty by the trial court. However, the trial court without providing opportunity to the petitioners to lead evidence and without hearing the arguments on the application passed the impugned order. When the application is filed under Section 446(3) of Cr.P.C., the Court without passing any orders cannot proceed to attach the property of the appellants. The records also disclose that on 4.5.2017 the appellants have deposited a sum of Rs. 20,000/-. Under the above said facts and circumstances, the trial court ought to have considered the application as to whether the appellants have got any genuine reasons for remission. At any stage of the proceedings, the appellants can make such application depending upon the circumstances available to them. 7. 20,000/-. Under the above said facts and circumstances, the trial court ought to have considered the application as to whether the appellants have got any genuine reasons for remission. At any stage of the proceedings, the appellants can make such application depending upon the circumstances available to them. 7. Section 446(3) of Cr.P.C. imposes responsibility on the court, if such an application is filed, the court has to record its reasons and remit any portion of the penalty mentioned and enforce payment in part by ascertaining whether there are any sufficient grounds made out for remission. Under the above said circumstances. Without passing any such orders, the court has issued sale warrant after attaching the property of the appellants. In view of the above said circumstances, though the order dated 19.9.2016 is not liable to be set aside. However, the subsequent proceedings, after filing of such application by the appellants, are bad-in-law. Hence, I am of the opinion the order issuing sale warrant on 17.4.2017 and all subsequent proceedings shall be stayed by the trial court till disposal of the application filed by the appellants for remission of the amount. If, for any reason, the court is of the opinion, the appellants are not entitled for any remission; the court can proceed with the order passed by it on 17.4.2017 and 4.5.2017. Accordingly this appeal is disposed of. 8. In view of the disposal of this appeal IA No.1/17 does not survive for consideration. Accordingly, it is dismissed.