IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL No.1577/2019 BETWEEN:
1. A.Narashimappa S/o Anjinappa Aged about 50 years Residing at Kasinayakanahalli Village Madhugiri Taluk Tumakuru-572 129.
2. Nagappa S/o Gurappa Aged about 58 years Residing at Koooteri Village Kasaba Hobli, Kolar Taluk, Kolar District-562 105.
(By Sri C.N.Raju, Advocate) AND:
State by Air Port Police (BIAL PS) Bengaluru, Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001 …Appellants …Respondent (By Sri Thejesh P., HCGP) This Criminal Appeal is filed under Section 449(2) of Cr.P.C praying to set aside the order passed by the V Additional District and Sessions Judge, Devanahalli, Bengaluru Rural District, Bengaluru in Crl.Misc.No.15132/2019 dated 08.08.2019 and allow the appeal filed by the appellants.
This Criminal Appeal coming on for dictating judgment this day the Court delivered the following:-
JUDGMENT The present appeal has been preferred by respondents No.1 and 2 challenging the order dated 8.8.2019 passed by 5th Addl. District and Sessions Judge, Devanahalli, Bengaluru Rural District, Bengaluru in Crl.Misc.No.15132/2019 wherein the application filed under Section 446(3) of Cr.P.C. has been rejected and the bond amount of Rs.1,00,000/- has been forfeited.
2. I have heard the learned counsel appearing for the appellants and the learned High Court Government Pleader for the respondent-State.
3. Though this case is listed for admission, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
4. The factual matrix of the case is that appellants stood as sureties to accused No.3 in Crime No.93/2015 for the offence punishable under Sections 302, 201 r/w 34 of IPC and executed a bond for a sum of Rs.1,00,000/- each in S.C.No.15020/2016 on the file of 5th Additional District and Sessions Judge, Devanahalli on 17.10.2016. Thereafter, accused was got released and he did not appear before the Court. The trial Court issued NBW against accused No.3 and thereafter notices were also issued to appellants. Appellants No.1 and 2 appeared before the trial Court and submitted that they do not know the whereabouts of accused No.3 and the Hon’ble trial Court ordered for forfeiting the bond executed by the appellants and directed to register the Criminal Miscellaneous No.15132/2019 against the appellants. The appellants appeared and filed an application under Section 446(3) of Cr.P.C. to reduce the amount of forfeiture. After hearing, the said application came to be dismissed. Challenging the same, the appellants are before this Court.
5. It is the submission of the learned counsel for the appellants that the forfeiture of the bail bond and the plea of remission of the penalty has to be considered by looking to the facts of the case on hand. It is his further submission that the appellants 1 and 2 have made all efforts to secure accused No.3 and in spite of their best efforts, they have not secured accused No.3. It is his further submission that under Section 446(3) of Cr.P.C. it empowers the court to grant such remission but the Court has to exercise its discretion and grant the remission lesser than what has been executed by the accused by giving good reasons and order has to be passed.
6. It is his further submission that in the decision in the case of Mohammed Kunju and another Vs. State of Karnataka reported in AIR 2000 SC 6, lesser bond amount can be remitted by the Court. It is his further submission that the least penalty may be imposed to the appellants taking into consideration the other conditions. He further submitted that he is ready to deposit an amount of Rs.30,000/- in lieu of Rs.1,00,000/-. On these grounds he prayed to allow the appeal and to modify the order of the trial Court.
7. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the appellants have stood as sureties to accused No.3 and thereafter accused No.3 has been absconded, till date he has not been secured even by making all efforts. It is his further submission that the appellants have not produced any documents to show that they have made all efforts to secure the accused. In the absence of any such material the Court below has came to a right conclusion and has rightly rejected the application. There are no good grounds to interfere with the order of the trial Court. On these grounds, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties.
9. It is not in dispute that the appellants 1 and 2 have stood as sureties to accused No.3 on 17.10.2016. Thereafter, accused No.3 has been released on bail and he has not appeared before the Court and NBW also came to be issued as against accused No.3. Thereafter, notices have also been issued to the sureties and it is their case that they do not know the whereabouts of accused No.3.
10. On close reading of the said order it reveals that the appellants have stood as sureties and they have not produced the accused as per the bond executed by them and the undertaking which they have taken. As could be seen from the bond executed, the accused and the sureties have undertaken that in the absence of the accused they will secure the attendance and appearance of the accused in accordance with the terms of the bond executed by them. The undertaking of the sureties to secure the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon even if both the undertakings happened to be executed in the same document for the sake of inconvenience. Each undertaking being distinct could be separately enforced. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Ram Lal Vs. State of UP reported in AIR 1979 SC 1498.
11. It is the submission of the learned counsel for the appellants that the appellants have made all efforts to secure the presence of accused No.3. All efforts have became in vain, but they have not produced any documents to substantiate their contention. But the fact remains that they are unable to produce accused No.3 as per their undertaking. But the only thing which they can do is, they can give the address where exactly he stays and to physically produce him before the Court. The records indicates that till date accused No.3 is absconding and he has not been produced before the Court. That is not the only ground for imposition of the penalty as contemplated under Section 446 of Cr.P.C. Section 446 of Cr.P.C. also envisages for remission of the amount. When the learned counsel for the appellants has undertaken that, by giving a remission if the order is passed to pay Rs.30,000/- each as penalty, then under such circumstances, it is going to help the appellants.
12. In the light of the submission and for having made efforts to secure the accused, I am of the considered opinion that if the remission is granted to the extent that the appellants need to pay Rs.30,000/- as penalty, then under such circumstances, it is going to meet the ends of justice.
In the light of the discussion held by me above, the appeal is allowed in part and the appellants are hereby directed to pay Rs.30,000/- each as a penalty before the Court below within a period of six weeks from the date of receipt of copy of this order. Failing which, the same can be recovered as arrears of Land Revenue from appellant Nos.1 and 2.
Sd/- JUDGE *AP/-