IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.No. 10589/2019 (GM-RES) BETWEEN MOHAMMAD HANEEF @ MOHAMMAD ALI @ MUNNA S/O. HASSAINAR AGED 36 YEARS R/AT DERA MANE KURUDA PADAVU POST UPPALA VIA PAIVALIKE VILLAGE KASARAGOD TALUK & DISTRICT KERALA-671 322 (BY SRI. ARUNA SHYAM M, ADV.) AND THE STATE OF KARNATAKA BY VITTAL POLICE STATION D K MANGALURU-574 243 REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001 (BY SRI. S. RACHAIAH, HCGP) ... PETITIONER ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE ORDER DTD:9.5.2018 IN S.C.NO.43/2015 PENDING ON THE FILE OF THE HON'BLE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K. MANGALURU THEREBY REJECTING APPLICATION FOR RECALL OF BODY WARRANT AND REMANDING THE PETITIONER TO JUDICIAL CUSTODY ON ALL SUBSEQUENT DATES OF HEARING BY EXTENDING BODY WARRANT FROM TIME TO TIME WHICH IS PRODUCED AND MARKED AS ANNXUR- A AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is arraigned as accused No.1 in S.C.No.43/2015. He was granted bail in Crl.Misc.No.242/2011 by the Jurisdictional Sessions Court. On 02.05.2011, trial Court accepted the surety offered by petitioner and directed jurisdictional jail authorities to release the petitioner. During the pendency of proceedings before trial Court, petitioner (accused No.1) remained absent and as such on 02.08.2016 non-bailable warrant came to be issued to accused No.1. Thereafter, notice to surety of accused No.1 came to be issued and inspite of service of notice on surety of accused No.1, he remained absent. Later on 18.07.2017 surety for accused No.1 is said to have appeared and had sought for time to secure the presence of accused No.1. Hence, matter came to be adjourned.
2. On account of non-securing presence of accused No.1 by surety, learned trial Judge not only reissued non-bailable warrant against accused No.1 but also ordered to register miscellaneous case against surety for recovery of bond amount. In the meanwhile, jurisdictional investigating officer, namely Station House Officer of Vittal Police Station submitted a representation to trial Court to issue body warrant against accused No.1 on the ground that accused No.1 was in judicial custody in Crime No.322/2017. Hence, body warrant came to be issued and accused was produced before trial Court on 27.06.2018.
3. In the meanwhile, learned counsel for accused No.1 filed an application for recall of body warrant issued against accused No.1 on the ground that in Crime No.322/2017, accused No.1 had obtained bail. Said application has been rejected by the impugned order on 09.05.2018. Procedure adopted by the learned Sessions judge does not suffer from any legal infirmity.
4. However, fact remains that accused No.1 has been secured in S.C.No.43/2015 by Vittala Police Station after executing body warrant. Since accused No.1 was in judicial custody in Crime No.322/2017, by executing body warrant, accused No.1 came to be produced before trial Court adjudicating S.C.No.43/2015. In these circumstances, there was no impediment for the learned trial Judge either to allow application for recall of body warrant issued against accused No.1 imposing any fresh condition or otherwise.
5. In that view of matter, rejection of application for recall of body warrant which was filed before trial Judge on 08.05.2018 deserves to be allowed conditionally as per the following:
ORDER (i). Writ petition is allowed in part.
(ii). Order dated 09.05.2018 vide Annexure-A rejecting the application filed for recall of body warrant is hereby set aside and application filed on 08.05.2018 for recall of body warrant is allowed subject to following conditions:
(i) Petitioner shall furnish one solvent fresh (new) surety to the extent of amount as specified in the order passed in Crl.Misc.No.242/2011 and learned sessions judge shall not insist for production of solvency certificate.
(ii) Petitioner (accused No.1) shall execute a fresh personal bond for Rs.50,000/- (Rupees fifty thousand only).
(iii) Petitioner (accused No.1) shall mark his attendance with Vittala Police Station on 15th of every month between 10.00 a.m to 5.00 p.m. till conclusion of trial.
SD/-
JUDGE VP