IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE K.NATARAJAN CRIMINAL APPEAL NO.798/2019 BETWEEN Shankarappa S/o. Late Siddalingappa Aged about 70 years R/at No.98, Arakere Tumkur Taluk Tumkur District – 572101. ... Appellant (By Sri Prasanna D.P., Advocate) AND Madiwala Police Bengaluru – 560068 Represented by S.P.P. High Court Complex Bengaluru – 560001. … Respondent (By Sri K.P.Yoganna, HCGP) This Criminal Appeal is filed under Section 449 of the Code of Criminal Procedure praying to set aside the order dated 29.03.2019 in Crl.Misc.No.4890/2016 on the file of the LVIII Additional City Civil and Sessions Judge CCH-59 at Bangalore.
This Criminal Appeal coming for admission on this day, the court delivered the following:
JUDGMENT Learned State Public Prosecutor takes notice for the respondent.
2. Heard the learned counsel for the appellant as well as learned High Court Government Pleader for the respondent.
3. This appeal is filed by the appellant under Section 449 of Code of Criminal Procedure challenging the impugned order passed by the trial Court in Crl.Misc.No.4890/2016.
4. On perusal of the order sheet produced by the appellant’s counsel which shows the appellant said to have offered surety for accused Nos.1 and 2 in S.C.No.388/2014 on the file of LVIII Additional City Civil and Sessions Judge, Bangalore and due to the absence of the accused persons, bail bonds of the accused as well as surety were forfeited by the trial Court and ordered to register a Criminal Miscellaneous Case for the purpose of recovery of the bond amount. Subsequently, the Criminal Miscellaneous case has been registered and FLW has been issued to the accused and the appellant who is surety through Police but not executed on the ground that the property of the surety is situated outside the Bangalore. Thereafter, FLW was issued by the trial Court to recover the bond amount of Rs.1,00,000/- through Tahsildar, Koratagere Taluk, Tumakuru District. Accordingly, the Tahsildar said to have been taken action to execute the order of the Court, by that time, the appellant came to the trial Court and moved an application under Section 446(3) of Code of Criminal Procedure on 29.03.2019, but the trial Court has not passed any order and adjourned the matter after vacation by 29.06.2019 which is the date of hearing. As on today, there is no order passed by the trial Court under Section 446(3) of Code of Criminal Procedure in order to challenge the same under the appeal provisions of Section 449 of Code of Criminal Procedure. Therefore, appeal does not survive for consideration on the ground of maintainability, since there is no order under Section 446 (3) of Code of Criminal Procedure. Hence, appeal deserves to be dismissed. Accordingly, the appeal is dismissed as not maintainable.
5. However, on perusal of the order sheet of the trial Court dated 29.03.2019, the appellant already moved an application under Section 446(3) of Code of Criminal Procedure and the same ought to have been considered by the trial Court and if the order of bail is already executed by the Tahsildar, nothing remains for recalling. Therefore, the trial Court is directed to consider the application filed by the appellant immediately. The contention taken by the appellant may be urged before the trial Court.
In view of disposal of the main appeal, I.A.No.1/2019 for stay does not survive for consideration. Accordingly, I.A.No.1/2019 is dismissed.
SD/- JUDGE KA