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2020 DIGILAW 495 (KAR)

D. Shivanna v. State

2020-02-19

MOHAMMAD NAWAZ

body2020
JUDGMENT 1. The appellant has preferred this appeal under Section 449(2) of Cr.P.C. seeking to set aside the order dated 11.12.2019 passed in SC No.50/2016 on the file of the XLV Addl. City Civil and Sessions Judge, Bengaluru. 2. I have heard the learned counsel appearing for the appellant and the learned HCGP appearing for the respondent-State. 3. The learned counsel appearing for the appellant submits that the appellant and another person by name Jayaram gave surety to Accused No.2 Abbas, Accused No.3 Raju B. Singhe and Accused No.4 Santosh Bansode in connection with Crime No.342/2014 registered by Upparapete Police Station for the offences punishable under Section 370(A)(2) of IPC and Section 4 of ITP Act. He executed a bond for a sum of Rs.1,00,000/- on 18.11.2014. Thereafter, the case was committed to the trial court on 21.12.2015. The Honble Sessions Court issued summons to the accused persons for their appearance before the court. On 26.02.2016, accused Nos.1 and 2 appeared and they were enlarged on bail by the learned Sessions Judge. A surety by name Shobha offered surety to the accused persons. Thereafter accused No.2 also did not appear before the trial court, hence, the learned Sessions Judge issued NBW against the accused persons and issued notice to the sureties on 08.11.2019. The appellant/surety holder appeared before the court and filed an application under Section 446(3) of Cr.PC. The learned Sessions Judge passed an order on 11.12.2019 imposing a penalty of Rs.50,000/- each in respect of the absconding accused Nos.2 and 3. 4. The learned counsel for the appellant contends that initially the appellant and one Jayaram during crime stage offered surety to accused Nos.2 an 3. However, after committal of the case to the Sessions court, one Shobha offered surety to accused Nos.1 and 2. The appellant has only stood as a surety to the accused before the committal court. He submits that without forfeiting the bond amount and without registering a separate criminal miscellaneous case, the trial court has proceeded to pass the impugned order, which is not sustainable in law. He submits that no notice has been issued either to Jayaram who stood as a surety along with the appellant or to Shobha who stood as a surety for accused Nos.1 and 2 before the trial court. He submits that no notice has been issued either to Jayaram who stood as a surety along with the appellant or to Shobha who stood as a surety for accused Nos.1 and 2 before the trial court. He submits that even otherwise the imposition of penalty is too harsh and the appellant is not in a possession to pay the amount as he is a poor agriculturist and suffering from old age elements. He submits that the appellant has been making all efforts to trace out the absconding accused. Hence, he seeks to allow the appeal. 5. Per contra, the learned HCGP submits that the appellant is one of the surety holder to the absconding accused i.e., Accused Nos.2 and 3. Having stood as a surety for the said accused, it is obligatory on his part to secure their presence when he has undertaken to do so. He submits that accused No.3 has never appeared before the court though accused No.2 along with Accused No.1 appeared before the trial court. He submits that it is the appellant himself who has filed an application under Section 446(3) of Cr.P.C. praying to impose nominal penalty out of the bond amount and therefore now he cannot contend that no penalty could be imposed. Accordingly, he seeks to dismiss the appeal. 6. The material on record discloses that two persons namely Jayaram S/o. Kempaiah and the appellant-D. Shivanna S/o. Dollaiah stood as sureties for accused Nos.2 to 4 which is reflected from the order sheet dated 18.11.2014 of IX Addl. CMM, Bengaluru. Accepting the surety, accused Nos.2 to 4 were released on bail. 7. In the order sheet of the Sessions Court, it is shown that Accused No.1 is Abbas, Accused No.2 is Raju B. Singhe and accused No.3 is Santosh Bansode. Order sheet dated 26.02.2016 go to show that Accused Nos.1 and 2 were present and application under Section 439 Cr.P.C. was filed on their behalf. It is observed that, they are on court bail since crime stage itself, Hence, they were ordered to be enlarged on bail on their executing personal bond for a sum of Rs.1 Lakh each for the likesum. Surety by name Shobha w/o. Mr. M. Manjunath offered surety, which was accepted. The order sheet dated 08.11.2019 of the Sessions Court go to show that the appellant namely D. Shivanna was present and another surety Shobha was absent. Surety by name Shobha w/o. Mr. M. Manjunath offered surety, which was accepted. The order sheet dated 08.11.2019 of the Sessions Court go to show that the appellant namely D. Shivanna was present and another surety Shobha was absent. Since appellant pleaded that he is not able to trace accused No.2, surety bond was forfeited. The order sheet dated 11.12.2019 reflects that accused No.1 was present and NBW issued against him was cancelled. The surety by name D. Shvianna (Appellant) was present. Notice was issued to another surety Jayaram on the same day. The impugned order came to be passed since the appellant was not able to secure the presence of Accused Nos.2 and 3. 8. The learned counsel for the appellant has drawn my attention to the order sheet dated 21.12.2015 passed by the IX Addl. CMM, Bengaluru, wherein the learned Magistrate granted fresh bail to Accused Nos.1 to 3 on their executing personal bonds for a sum of Rs.1 Lakh with two sureties each for the likesum to the satisfaction of the court and directed to furnish fresh sureties before the Sessions Court on their first appearance. The learned counsel contends that the appellant has not offered any fresh surety to the said accused. One Smt. Shobha w/o. M. Manjunath stood as surety for Accused Nos.1 and 2 before the Sessions Court. It is noticed that even Accused No.3 was absent, for whom the appellant herein has stood as surety before the committal court. However, in the light of the contention raised by the learned counsel for the appellant that in view of the fresh surety offered by Smt. Shobha W/o. M. Manjunath and that the appellant has not offered fresh surety for Accused Nos.1 and 2 before the Sessions Court, the impugned order could not have been passed by the Learned Sessions Judge without clarifying the same. The contentions raised by the learned counsel needs to be considered by the learned Sessions Judge once again and therefore I am of the view that the appellant may be given one more opportunity to contest his application filed before the Sessions Court under Section 446(3) of Cr.P.C. The learned Sessions Judge shall proceed to pass fresh order in accordance with law on the said application after verifying the records. 9. With the above observations, I pass the following : ORDER The appeal is allowed. 9. With the above observations, I pass the following : ORDER The appeal is allowed. The impugned order dated 11.12.2019 passed in SC No.50/2016 on the file of the XLV Addl. City Civil and Sessions Judge, Bengaluru is hereby set aside. The learned Sessions Judge shall pass fresh order on application filed by the appellant under Section 446(3) of Cr.P.C., in accordance with law. All contentions of both the parties are left open.