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2020 DIGILAW 1311 (KAR)

Arun v. State Of Karnataka

2020-07-02

HANCHATE SANJEEVKUMAR

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JUDGMENT Hanchate Sanjeevkumar, J. - The present petition is filed under Section 439(1)(b) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C'), praying for relaxation of Conditions No.1, 2 and 10 imposed by the Court of II Additional Sessions Judge, Vijayapur (for short the 'learned Sessions Judge') in Crl.Msc.No.268/2020 dated 23.03.2020. 2. The learned Sessions Judge while allowing the petition in Crl.Misc.No.268/2020 had imposed totally 11 conditions and among them the Conditions No.1, 2 and 10, are as follows ;- "1. The instant-petitioner/accused No.2 shall execute their personal bond for Rs.2,00,000/- with two local solvent sureties with solvency certificates issued by the concerned revenue authorities, for like sum to the satisfaction of the committal court. 2. The instant-petitioner/accused No.2 shall pay/remit the forfeited bond amounts immediately to the Exchequer of Govt. of Karnataka through the Court. 10. The instant-petitioner/accused No.2 shall mark their attendance once in fortnight on every alternative Sunday between 6-00 a.m. in the morning and 10-00 p.m. in the night of Muddebihal P.S., before the SHO, in respect of which the said SHO, shall maintain the muster-roll and keep-on informing the concerned court once in 3 months regularly, till the further orders." 3. The counsel for the petitioner submitted that for relaxation of those conditions imposed in the order dated 23.03.2020 in Crl.Misc.No.268/2020, the petitioner has filed application before the learned Sessions Judge, but the learned Sessions Judge has dismissed the said application and thereby refused to relax the Conditions No.1, 2 and 10. Being aggrieved by the same, the present petition is filed. 4. The learned counsel for the petitioner argued that even though the learned Sessions Judge had allowed the bail petition and released the petitioner on bail by imposing such unreasonable conditions but virtually negating the benefit of bail to the petitioner. Further submitted that the Conditions No.1, 2 and 10 imposed are arbitrary and therefore prayed to relax the said conditions. 5. On the other hand, the learned High Court Government Pleader supported the order impugned and submitted that the conditions imposed by the learned Sessions Judge are very reasonable, taking into consideration of the conduct of the petitioner. Therefore, submitted that there is no need to interfere with the conditions imposed by the learned Sessions Judge and requested to dismiss the petition. 6. Therefore, submitted that there is no need to interfere with the conditions imposed by the learned Sessions Judge and requested to dismiss the petition. 6. Upon considering the Condition No.1 imposed, the learned Sessions Judge had directed the petitioner to execute personal bond for a sum of Rs.2.00 lakh with two local solvent sureties with solvency certificates issued by the concerned revenue authorities. In my opinion, imposition of such condition is virtually amounting to negate the fruit of the bail order. It is very difficult to get the solvency certificate in the present situation of wide spread of Covid-19 pandemic since the working strength of the revenue authorities is limited and it is experience of every man regarding functioning of Revenue Authorities. Instead of demanding solvency certificate to be issued by the Revenue Authorities, if it is ordered to execute two solvent sureties that would be sufficient. Therefore, I am of the opinion, Condition No.1 so far as directing to furnish solvency certificate by the Revenue Authorities is arbitrary and needs to be modified to this extent. If the Court imposes condition of furnishing solvency certificate from the revenue authorities, then the Court shall assign reasons on the facts and circumstances of the case and on conduct of the accused. Upon considering the conduct of the accused or considering any other mitigating factors if the Court feels to furnish solvency certificate from the revenue authorities that must be preceded by reasons. Blindly and in a mechanical way furnishing of solvency certificate from the revenue authorities cannot be imposed. In the present case the learned Sessions Judge has not assigned any reasons as to why the accused shall furnish solvency certificate. In a mechanical way the learned Sessions Judge has imposed condition furnishing of solvency certificate. Therefore, for this reason, this Condition No.1 is needed to be modified. 7. In the given facts and circumstances of the case as the petitioner is a coolie by avocation and it is very difficult to him to get the solvency certificate so as to comply the Condition No.1. Therefore, demanding production of solvency certificate is liable to be setaside. Therefore, accordingly, the Condition No.1 imposed by the learned Sessions Judge is to be relaxed to the extent that the petitioner shall execute personal bond for a sum of Rs.2,00,000/- with two local solvent sureties without insisting solvency certificate. Therefore, demanding production of solvency certificate is liable to be setaside. Therefore, accordingly, the Condition No.1 imposed by the learned Sessions Judge is to be relaxed to the extent that the petitioner shall execute personal bond for a sum of Rs.2,00,000/- with two local solvent sureties without insisting solvency certificate. Therefore, Condition No.1 imposed by the learned Sessions Judge stands modified to the extent that the petitioner shall execute personal bond for a sum of Rs.2,00,000/- with two local solvent sureties to the satisfaction of the learned Sessions Judge. 8. So far as Condition No.2 is concerned, it is ordered that the petitioner shall pay/remit the forfeited bond amounts immediately to the Exchequer of Government of Karnataka through the Court. Here for imposition of such condition it appears that the learned Sessions Judge might have observed at para 6 in the order but there is no cogent reason is stated while imposing Condition No.2. Upon considering the submission made by the learned counsel for the petitioner coupled with the reading observations at para 6 in the order of the learned Sessions Judge, the petitioner has remained absent chronically from 11.06.2018 and the learned Sessions Judge has inclined to issue non-bailable warrant and the same was executed and accordingly, the petitioner was produced before the Court on 10.02.2020 and since then he is in judicial custody. It appears that the learned Sessions Judge on that premise might have imposed such Condition No.2. The petitioner was absent before the Court and violated the conditions of bail. Apart from issuance of non-bailable warrant the learned Sessions Judge ought to have initiated separate proceedings against the accused for forfeiture of bond amount. Thus being the case, when the accused remained absent, mere issuance of non-bailable warrant, straightway the Court cannot forfeit the bond amount unless a separate proceedings is initiated as per Section 446 of Cr.P.C. Therefore, without giving opportunity to the petitioner the forfeiture of bond amount cannot be made. Atleast an hearing could be given to the accused and the forfeiture of bond amount straightway cannot be made for the reason that after hearing him the amount stated in the bond be forfeited. Therefore, the Court is of the opinion that the imposition of Condition No.2 is not correct and found to be arbitrary. Therefore, the imposition of Condition No.2 is hereby set-aside. 9. Therefore, the Court is of the opinion that the imposition of Condition No.2 is not correct and found to be arbitrary. Therefore, the imposition of Condition No.2 is hereby set-aside. 9. So far as Condition No.10 is concerned, the Condition No.10 is imposed to the extent that directing the petitioner to mark his attendance before the Station House Officer on every alternative Sundays. The counsel for the petitioner submitted that the Investigating Officer had filed charge sheet before the Court and after the filing of charge sheet, it would not be required for the accused to make presence before the Station House Officer since the petitioner shall have to appear before the Court on every date of hearing. When this being so, if Investigating Officer had filed the charge sheet then it would not be proper to impose condition that the petitioner shall be present before the Station House Officer, till further orders. Once charge sheet is filed then the entire process of the case shifts to the Court then the Court has to ensure the presence of the petitioner before the Court on every date of trial. Hence, for imposing condition for making presence before the Station House Officer is not proper. 10. The learned Sessions Judge has not stated marking of the attendance before Station House Officer whether till the date of filing of charge sheet or till the completion of the trial before the Court. In this regard there is no observations made by the learned Sessions Judge while imposing said Condition No.10. 11. Therefore, in view of the fact that by accepting the submission of the counsel for the petitioner that the Investigating Officer had filed charge sheet before the Court then the petitioner shall be present before the Court on every date of trial without marking attendance before the Station House Officer. Therefore, in this regard, the Condition No.10 is modified to the extent that the accused need not mark his attendance before the Station House Officer but the petitioner shall be present before the Court on every date of hearing. If the petitioner is not consecutively present for three dates of hearing during the trial then the learned Sessions Judge is at liberty to take any action against him. With these observations, the Condition No.10 is modified. Hence, the following: ORDER The petition filed under Section 439(1)(b) of Cr.P.C is allowed in part. If the petitioner is not consecutively present for three dates of hearing during the trial then the learned Sessions Judge is at liberty to take any action against him. With these observations, the Condition No.10 is modified. Hence, the following: ORDER The petition filed under Section 439(1)(b) of Cr.P.C is allowed in part. The Conditions No.1, 2 and 10, to the extent indicated above, imposed by the II Addl. Sessions Judge, Vijayapur in Crl.Misc.No.268/2020 dated 23.03.2020 are relaxed.