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2021 DIGILAW 334 (KAR)

Kiran S/o Rajkumar Dandin v. State

2021-03-01

V.SRISHANANDA

body2021
ORDER : Sri Gururaj V. Hasilkdar, learned High Court Government Pleader takes notice to the respondents. 2. The petition under Section 482 of Cr.P.C. is filed seeking quashing of the order dated 18.11.2019 passed in C.C.No.264/2014 on the file of II-Addl. Senior Civil Judge & JMFC, Bidar and order passed by the I-Addl. District & Sessions Judge, Bidar in Crl.R.P.No.74/2019 dated 04.03.2020. 3. Brief facts, which are necessary for disposal of this petition are as under: Accused Nos.1 to 3 in C.C.No.264/2014 were enlarged on bail by the II-Addl. Senior Civil Judge & JMFC, Bidar. On 18.11.2019, accused Nos.1 to 3 remained absent and there was no application filed seeking their exemption by their advocate. Left with no other alternative, learned Magistrate forfeited bond and issued non-bailable warrant. Challenging the said order, the accused persons approached the District Court, Bidar in Crl.R.P.No.74/2019. Learned District Judge after verifying the materials on record, passed an order on 04.03.2020 holding that cancellation of the bail and grant of bail are discretionary orders and if the non-bailable warrant is issued by the learned Magistrate, the course that was open for the accused-petitioners was to approach the very same Court and not to challenge the order in the appellate Court and thus, dismissed the revision petition. Order passed by the learned Magistrate and the District Judge against accused persons are subject matter of this criminal petition. 4. Sri Hanmanthraya Sindhol, learned counsel for the accused-petitioners vehemently contended that for non-appearance on one occasion, learned Magistrate by order dated 18.11.2019 not only issued non-bailable warrant but also forfeited the bonds, which is incorrect and therefore, sought for allowing the criminal petition. He further argued that challenging the order dated 18.11.2019, the accused persons approached the District Court, Bidar and learned District Judge without considering the case of the accused in its proper perspective dismissed the revision petition and thus, there is miscarriage of justice and therefore sought for allowing the criminal petition. 5. He further argued that challenging the order dated 18.11.2019, the accused persons approached the District Court, Bidar and learned District Judge without considering the case of the accused in its proper perspective dismissed the revision petition and thus, there is miscarriage of justice and therefore sought for allowing the criminal petition. 5. Per contra, learned High Court Government Pleader submits that there was no necessity for the accused persons to challenge the order dated 18.11.2019 and all that the accused persons were required to seek recall of the non-bailable warrant as provided under Section 70(2) of Cr.P.C. and without resorting to such a course, accused persons have approached the District Court in revision petition and since a order of issue of non-bailable warrant is not a final order. 6. In the light of arguments advanced and after verifying the materials on record, this Court is of the opinion that the course adopted by the accused-petitioners in not approaching the very same Court which issued the non-bailable warrant appears to be incorrect approach. By order dated 18.11.2019 learned Magistrate ordered non-bailable warrant against accused Nos.1 to 3 and cancelled the bond as there was no representation on behalf of accused Nos.1 to 3. Subsequent thereto also, the accused persons remained absent and non-bailable warrant issued returned unexecuted. 7. Under Section 446 of Cr.P.C. if the accused does not appear before the Court or their appearance is not exempted by process known to law, cancellation of bail bond is automatic. Nevertheless, the learned Magistrate by specific order has cancelled the bail. 8. Learned counsel for the accused-petitioners, submits that only for non-appearance of the accused persons on one occasion, the learned Magistrate has taken extreme step of canceling the bond, which is incorrect. But on perusal of the order sheet available on record, it is seen that the accused persons were irregular on earlier occasions also. Nevertheless it is discretionary power that has been exercised by the learned Magistrate. The remedy open for the accused persons was to approach the very same Court seeking recall of non-bailable warrant as contemplated under Section 70(2) of Cr.P.C. and also request the Court for remission of bond amount. Such a course has not been taken by the accused persons for the reasons best known to them. 9. Per contra, accused persons approached the District Court in revision petition. Such a course has not been taken by the accused persons for the reasons best known to them. 9. Per contra, accused persons approached the District Court in revision petition. Learned District Judge has dismissed the revision petition on the ground that it is the discretion of the Court to pass a order of grant of bail or cancellation of bond. As could be seen from the order sheet of Trial Court, accused were not regular before the Court and it is not the first occasion where the accused persons remained absent. As such learned Magistrate cancelled the bond. The order sheet also depicts that on number of occasions accused persons remained absent and trial of the case hampered because of their non-appearance. 10. Be that as it may. Now the apprehension of the learned counsel for the accused persons is that if the accused persons are to approach the learned Magistrate, instead of recalling the non-bailable warrant, accused persons may be straight away sent to judicial custody. 11. Sri Gururaj Hasilkar, learned High Court Government Pleader submits that it is always open for the accused persons to offer fresh bond with fresh surety as contemplated under Section 446-A of Cr.P.C. Therefore, the apprehension of the accused can be quelled by directing accused persons to execute a fresh bond and fresh surety to the satisfaction of the Trial Court and bond amount already forfeited in a sum of Rs.20,000/-each by order dated 18.11.2019 paid by the accused persons. The said order would also meet the ends of justice and trial would also be progressed. 12. At this stage Sri Hanmanthraya Sindhol, submits that accused persons are ready to pay the bond amount but having regard to the prevailing COVID-19 pandemic, some time may be granted to pay the bond amount in installments. 13. Submission of Sri Hanmanthraya Sindhol, appears to be reasonable in view of prevailing COVID-19 pandemic. Hence, it is necessary to grant four monthly installments for payment of bond amount. 14. Sri Hanmanthraya Sindhol, submits that the accused persons would appear before the Magistrate on 15.03.2021 with first installment of Rs.5,000/-each towards the bond amount and are also prepared to execute a fresh bond and surety and learned Magistrate be directed to accept the same and proceed with the trial. 15. 14. Sri Hanmanthraya Sindhol, submits that the accused persons would appear before the Magistrate on 15.03.2021 with first installment of Rs.5,000/-each towards the bond amount and are also prepared to execute a fresh bond and surety and learned Magistrate be directed to accept the same and proceed with the trial. 15. Learned Magistrate is thus directed to take the fresh bond and fresh surety to its satisfaction on 15.03.2021 and proceed with the trial in accordance with law. The balance bond amount of Rs.15,000/-by each of the accused persons shall be paid in three (3) equal installments of Rs.5,000/-per month each. 16. With the above directions, the criminal petition is disposed of. In view of the disposal of main matter, I.A.No.1/2021 for stay does not survive for consideration.