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High Court of Punjab and HaryanaCRM-M/57656/2022disposed of

Manpreet Singh v. State Of Punjab

2022-12-22Mr. Justice Harsh Bunger7 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of Decision: 22.12.2022 MANPREET SINGH

...Petitioner

Versus

STATE OF PUNJAB

...Respondent

CORAM: HON'BLE MR. JUSTICE HARSH BUNGER Present :

Mr. RishuMahajan, Advocate for the petitioner.

HARSH BUNGER, J. (ORAL) This is an application for placing on record the Zimini order as Annexure P-5.

Criminal Misc. Application is allowed, as prayed for and Annexure P-5 is taken on record, subject to all just exceptions. CRM-M-57656-2022 Prayer in the present petition filed under Section 482 of Code of Criminal Procedure, is for quashing/setting aside of impugned order dated 20.10.2022 (Annexure P-3) passed by the learned Sessions Judge, Special Court, Kapurthala, whereby, the bail order of the petitioner has been cancelled and his bail bonds/surety bonds have been forfeited to the State on account of his non-appearance on one date in proceedings relating to case FIR No.35 dated 29.03.2019 registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, at Police Station Subhanpur,

-2Kapurthala and his presence has been ordered to be secured through nonbailable warrants. Learned counsel for the petitioner submits that the petitioner was earlier admitted to bail and thereafter, he had been regularly appearing before the trial Court except on one occasion i.e. 20.10.2022 due to noting down a wrong date as 20.11.2022 and on account of his non-appearance, his bail order was cancelled and bail/surety bonds were forfeited to State and the non-bailable warrants were issued. Learned counsel further submits that now the next date fixed before the trial Court is 13.04.2023 for the appearance of the petitioner.

He submits that there was no intention on the part of the petitioner to delay the proceedings and the absence of the petitioner before the trial court was neither intentional nor deliberate but on account of the reason stated above. It is submitted that the petitioner is ready and willing to surrender before the trial Court and join the proceedings, if he is granted one opportunity to do so. Learned counsel further submits that the petitioner undertakes to appear on each and every date before the trial court and to abide by all the terms and conditions to be imposed by this Court or by the trial Court.

Notice of motion.

On the asking of the Court, Mr. Vinay Kumar Gupta, Assistant Advocate General, Punjab, who is present in the Court, accepts notice on behalf of respondent-State and submits that since the petitioner has jumped the bail and has not followed the conditions of bail, accordingly, he does not

-3deserve any indulgence; however if the petitioner is ready to surrender then strict conditions be imposed on him.

Heard the arguments of learned counsel for the petitioner as well as learned counsel for the respondent-State and have also perused the paper book as well as the impugned order.

A perusal of impugned order dated 20.10.2022 (Annexure P-3), reflects that the trial Court proceeded to passthe orderon account of absence of petitioner on 20.10.2022. It is observed that at times, the accused or his counsel canbe prevented by sufficient reasons to put anappearance before the Court on a given date and every such absence cannot be necessarily construed as a deliberate and willful absence. This Court videorder dated 18.07.2018, passed in CRM-M29461-2018, titled as "Naveen Rao Vs. Central Bureau of Investigation (CBI) ACB, Chandigarh, while considering somewhat similar issue, observed as under:- "- x - x - Keeping in view the conduct of the petitioner as he came back immediately after a period of 20 days, it appears that there was no intention on the part of the petitioner to remain absent. It can be an inadvertent mistake/lapse on his part. Moreover, the petitioner is NRI and ready to abide by all terms and conditions to be imposed by this Court or by the trial Court.

Same issue was there before the Kerala High Court in Mahesh vs. State of Kerala, 2011 (1) Cri.C.C. 834 wherein thecondition of bail was violated and due to

-4absence of the accused-petitioner, bail was cancelled. The relevant portion of said judgment is reproduced as under: - "20. To cancel the bail under section 437(5) or 439(2) of the Code very cogent and overwhelming reasons are also to be stated. The Court shall not cancel bail in a routine manner, under section 437(5) or 439(2) of the Code, as per law. This is the settled position of law. But, the position under Section 446-A of the Code is totally different. If the Magistrate Court is satisfied that there is breach of condition of bail bond and thereby, forfeiture of the bond, the bond automatically stands cancelled under Section 446-A of the Code.

21. However, a mere violation of condition in the bail order will not lead to automatic cancellation of bail bond under Section 446-A of the Code. Apart from violation of condition in the bail order, the Court must also be satisfied that the bond is forfeited then alone, bail bond would stand cancelled and the accused can be proceeded against. It is the forfeiture of the bail bond which is crucial under Section 446-A of the Code. If the breach of condition is not wilful and is due to reasons beyond his control, it cannot be said that there is forfeiture of bond. The question is dealt with in Rajan v. State of Kerala, 2006 (4) KLT 429 and it is held thus:

"A bond for appearance can be said to be forfeited, only if there is a wilful default on the part of the accused in not appearing before the Court. It is needless to say that an accused canbe absent in Court due to various reasons on a particular occasion. When the counsel files an

-5application, it follows that the accused was vigilant and he had taken steps to instruct his counsel to file an application. Such an accused cannot hesaid to have forfeited thebond by reason of any wilful default. It is only in cases where there is wilful default on the part of the accused to appear in Court, forfeiture of bond will follow and penalty will incur."

22. In State of Kerala v. Anil Kumar, 2005 (4) KLT SN 59, referring to cancellation of bail, this Court held thus: "an innocent violation of any condition imposed by the Court will not ipso facto lead to cancellation of bail under section 439(2) Criminal Procedure Code. The crucial and vital question is whether there has been deliberate, contumacious and unjustified infraction of the conditions imposed by the Court". It is needless to say that if the Court cannot cancel bail, if violation of condition is not wilful or deliberate, it is only reasonable to hold that such violation (which is not wilful or intentional) shall also not lead to an automatic cancellation of bail bond under Section 446A of the Code."

In the present case also, the bail/surety bonds have been cancelled as the petitioner left India without prior permission of the Court. An application for exemption from personal appearance was also moved, which was dismissed. The petitioner is NRI and he went abroad without seeking any permission from the Court, which has been statedto be inadvertent as he did not go through the terms and conditions of bail but the circumstances were beyond his control. The petitioner immediately came back to India and came to know that his bail bonds have been cancelled.

-6was no intention on his part to remain absent or to avoid the Court proceedings. The petitioner remained ill when he was abroad, remained there for a period of 20 days and could not come back immediately.

Accordingly, the present petition is allowed and the petitioner is directed to surrender before the trial Court on the next date of hearing i.e., 19.07.2018 by furnishing an undertaking before the trial Court that he will attend the Court proceedings regularly and will not leave the country without prior permission of the Court and abide by all terms and conditions to be imposed by the trial Court. He is directed to be released by the trial Court by furnishing adequate surety/bail bonds to its satisfaction subject to payment of cost of `25000/- to be deposited with the trial Court.

- x - x -"

In the present case also, the bailalongwith bonds of the petitioner have been cancelled as he did not appear on the date fixed before the trial Court which is stated to be on account of noting down a wrong date. Keeping in view the peculiar facts and circumstances of the case and considering the fact that the petitioner is ready and willing to surrender and join the proceedings and also to abide by all terms and conditions to be imposed by this Court or by the trial Court; this Court is inclined to afford one last opportunity to the petitioner to mend his ways. Moreover, joining of proceedings by the petitioner, would ensure finalization of proceedings.

In view of the above, the present petition is disposed of with a direction to the petitioner to surrender before the trial Court on or before

-710.01.2023 by furnishing an undertaking before the trial Court that he will attend the Court proceedings regularly and will not leave the country without prior permission of the Court and abide by all terms and conditions to be imposed by the trial Court. In case, the petitioner surrenders before the trial Court on or before 10.01.2023, then he be released by the trial Court upon his furnishing adequate surety/bail bonds to its satisfaction subject to payment of cost of Rs. 10,000/- to be deposited with the trial Court in the Legal Aid Fund.

In case, the petitioner does not appear before the trial Court on or before 10.01.2023, then the instant petition shall be deemed to have been dismissed.      

       concerned 

    

             

   

 

     

  

     

 Disposed of in the above-said terms.

December 22, 2022 (HARSH BUNGER) gurpreet JUDGE Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No