IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL No.1741 of 2017 BETWEEN 1. ABDUL HAKEEM @ K. ABDUL HAKEEM, S/O. MOHAMMED, AGED ABOUT 45 YEARS, RESIDING AT ISMAIL NAGAR HOUSE, KALLADKA POST, GOLTHAMAJAL VILLAGE, BANTWALA TALUK, D.K. DISTRICT – 574 222.
2. JAWAZ @ MOHAMMED JAWAZ, S/O. HAMMABBA, AGED ABOUT 39 YEARS, RESIDING AT MARBLE HOUSE, KALLADKA POST, GOLTHAMAJAL VILLAGE, BANTWALA TALUK, D.K. DISTRICT – 574 222. ... APPELLANTS (BY SRI B. LETHIF, ADVOCATE) AND STATE OF KARNATAKA, REPRESENTED BY BANTWALA TOWN POLICE STATION, D.K. DISTRICT.
REPRESENTED BY S.P.P. HIGH COURT BUILDING, BENGALURU – 560 001.
... RESPONDENT (BY SRI HONNAPPA, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 449(ii) CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED 02.02.2017 IN CRL.MISC.No.1285 of 2016 PENDING ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA AGAINST THE APPELLANTS.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING JUDGMENT This appeal is filed by the appellants under Section 449(ii) of Criminal Procedure Code, 1973 (Cr.P.C.) being aggrieved by the order dated 02.02.2017 passed in Crl.Misc.No.1285/2016 on the file of the Principal District and Sessions Judge, Dakshina Kannada whereby, the Trial Court forfeited the bond of the appellants and directed them to pay Rs.50,000/- each and also issued sale warrant through the Tahsildar, Bantwal.
2. Heard the arguments of Sri B.Lethif, learned counsel for the appellants and Sri Honnappa, learned High Court Government Pleader for the respondent-State and perused the order impugned under challenge.
3. The case of the appellants is that in SC No.26/2015, they offered sureties for the release of accused No.3 on bail by executing bond for Rs.50,000/- each. Subsequently, accused No.3 remained absent and therefore, a non-boilable warrant came to be issued. In spite of the same, presence of accused No.3 could not be secured. Hence, bail bond of the accused as well as the sureties bond (both the appellants) were forfeited by the Trial Court and ordered to split up the case against accused No.3 thereby, SC No.185/2016 came to be registered and Crl.Misc.No.1285/2016 was also registered against these appellants for recovery of bond amount and notice was issued against these appellants, but they remained absent. Therefore, the Trial Court forfeited the bond of the appellants on 02.02.2017, which reads as under:
“ Once again case is called at 3.30 p.m.
No representation for respondents. Respondents stood as sureties for Accused No.3. Accused No.3 jumped out of bail. The respondents have not assigned any reason for remittance of any portion of bond amount. The bail bonds executed by sureties have been forfeited. Therefore both respondents are liable to pay bond amount of Rs.50,000/-. Both respondents directed to pay penalty of Rs.50,000/- each. The properties of sureties are hereby attached.
Issue an order of attachment of the properties of sureties to the Tahsildar Bantwal through Deputy Commissioner D.K to recover bond amount of Rs.50,000/- each from the Respondents.
Await for report by 27-3-2017.
Sd/- Prl.S.J.”
On the same day, the Trial Court directed the Tahsildar, Bantwal through the Deputy Commissioner, D.K., to recover the bond amount from these appellants and subsequently, the sale warrant was also issued as against the properties of the appellants to recover the amount. The same is under challenge.
4. Learned counsel for the appellants contended that the sureties in fact advised the accused to surrender before the Court and hence, the accused voluntarily surrendered himself before the Court at the instance of these sureties. Thereafter the accused also faced the trial and got acquitted from the charges. Therefore, learned counsel for the appellants prayed for remission of the bond amount of Rs.50,000/- each as ordered by the Trial Court to reduce the same to 20% each. Learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of Mohammed Kunju and another vs. State of Karnataka reported in 2000 CRI.L.J. 165 and further submitted that though in the said case, the accused was not secured before the Court, but in the instant case, the accused surrendered him at the instance of these appellants. Therefore, he sought for further remission of the amount from 20% each to 10% each.
5. Per contra, learned High Court Government Pleader contended that there is no document produced by the appellants to show that the appellants themselves secured the presence of the accused or the accused voluntarily surrendered himself before the Trial Court. However, non- bailable warrant has been ordered. Thereafter, the case against the accused has been split up and Crl.Misc.No.1285/2016 has been registered against the appellants. Even the appellants have not filed any application before the Trial Court under Section 446(3) of Cr.P.C. for remission of bond amount. Therefore, Learned High Court Government Pleader contended that as per the judgment of the Hon’ble Apex Court, the appellants are required to pay 20% of the bond amount and the remission may be ordered and hence, prayed for dismissal of the appeal.
6. Upon hearing the arguments of both the counsel, it is not in dispute that these appellants offered sureties to accused No.3 in S.C.No.26/2015 and the accused was absconding. Later to split-up charge sheet was ordered to be filed against the accused and the same was registered in S.C.No.185/2016. The fact remains that the accused was absconding and the sureties not produced the accused before the Court as per the terms of the bail bond executed by them before the Trial Court, while releasing the accused. However, after registering the criminal miscellaneous case against the appellants, notices were served upon them, but they did not chose to appear before the Court. Therefore, the Trial Court rightly forfeited the bond of Rs.50,000/- each executed by them. There is no document to show that these appellants in fact secured the presence of the accused by surrendering him before the Court. Learned counsel brought to the notice of this Court that in an identical case in Criminal Appeal No.992/2019, this Court ordered to recall the warrant of sale issued by the Trial Court.
7. Perused the judgment of this Court passed in Crl.A.No.992/2019. In the said case, the sureties have paid Rs.20,000/- in pursuance of the bond amount of Rs.50,000/- each and they also filed an application under Section 446(3) of Cr.P.C. which was not considered, but the said Court issued sale warrant which was set aside by this Court. Similarly, in this case also, the bond has been forfeited and there is no application filed by the appellants under Section 446(3) of Cr.P.C seeking remission in the bond amount. Therefore, there is no other option for the Trial Court but to recover the said amount by issuing warrant through appropriate authorities, as per the law. Be that as it may. The fact remains that the accused has already surrendered and got acquitted by the Court. However, the duty of the sureties does not end since the bond has already been forfeited by the Trial Court under section 446 (1) of Cr.P.C. The Hon’ble Apex Court in the case of Mohammed Kunju ordered to pay Rs.5,000/- each instead of Rs.25,000/- which is 20% of the bond amount. Though learned counsel for the appellants submitted that the accused surrendered before the Court at the instance of the sureties, but no documents were produced by them before the Trial Court. The said sureties have brought the accused before the Court. Such being the case, the arguments addressed by learned counsel for the appellants is not acceptable that the sureties themselves secured the presence of the accused before the Court. Even otherwise, the bond of both the sureties and accused No.3 has been forfeited and ordered to register a separate case against accused No.3 as well as sureties for recovering the bond amount in Crl.Misc.No.1285/2016. Therefore, the contention taken by learned counsel for the appellants cannot be acceptable. However, in view of the dictum of the Hon’ble Apex Court, the appellants are liable to pay Rs.10,000/- each instead of Rs.50,000/- each before the Trial Court. Accordingly, I pass the following order;
The appeal is allowed. The order of issuance of sale warrant against the properties of the appellants is hereby set aside subject to the condition that the appellants are directed to deposit Rs.10,000/- each before the Trial Court within four weeks form the date of receipt of copy of the order.
Sd/- JUDGE mv