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1985 Supreme(Raj) 137
Rajasthan High Court
M.C. Jain, and G.K. Sharma JJ.
Johny Wilson - Appellant
Versus
State of Rajasthan - Respondents
S.B. Criminal Misc. Bail Application No. 116 of 1985
Decided On : July 17, 1985
Neelkamal Bohra, for Applicant; Niyazuddin Khan, Public Prosecutor
Headnote:(a) Interpretation of statutes—Intention of legislature—Principles.(b) Cr.P.C—Sec. 446 A—Non-appearance of accused—Power of court — Court can exercise control over accused for regular appearance by exercising discretion against him.(c) Cr.P.C.—Forfeiture of bail bonds for non-appearance of accused-effect.(d) Cr.P.C— Secs. 436, 437, 438, 446 and 447—Provisions used—word May -Means discretion of court.(e) Cr.P.C.—Bail—Conduct of accused—Forfeiture of bail bonds and rejection of application for bail-Accused remained absconding for 6 years and in second time for a period of 1 year—Bail application rightly rejected.
When a bond for appearance in a case of a person is forfeited for breach of a condition, bis bond and surety bond shall stand cancelled and such person will not be entitled as of right to be released on bail upon the execution of fresh personal or surety bond. It would be within the discretion of the court to release him or not to release him upon the execution of fresh personal or surety bond. In case, the court releases him, the fresh security may be demanded from him in accordance with the directions of the original order or the court may order for higher amount. (Para 23)
A bare look to the provisions of Sections 436, 437, 438, 439, 446A and 447, Cr.P.C. would indicate that in Sec. 436, the legislature has used the expression "shall" for releasing the person-accused of a bailable offence on bail but in the remaining aforesaid provisions, the legislature has used the word "may". This shows that the legislature is alive to use of different word i.e. under the other provisions, the legislature left it to the discretion of the court to pass an order or not to pass an order under the other provisions. When discretion has been conferred on the court, then, it would mean that the court may or may not exercise the discretion in favour of the accused, It is true that forfeiture of the bail-bond does not amount to cancellation of bail. The legislature has not used the word "cancellation". In sections 437(5) and 439(2), a discretion is given to the court-concerned to direct that any person, who had been released on bail be arrested and committed to custody. When any such order is passed, it amounts to cancellation of bail. What is to be seen is that even when the cancellation of bail is not so ordered under sections 437(5) or 439(2), Cr.P.C. What is the effect of cancellation of bail and bail bonds. Under sub-sec. (2) of Sec. 436, when the accused has failed to comply with the conditions of the bail-bonds, the court is empowered not to release him on bail. Sub-Sec. (2) of Sec. 436, thus, clearly provides that it is within the discretion of the court to release the accused on bail or refuse him bail, when he fails to comply with the conditions of the bail-bond regarding the time and place of attendance. Sub-sec. (2) begins with non-obstante clause and as such, sub-sec. (2) over-rides sub-sec. (1) in the eventuality when there is failure to comply with the conditions of bail-bond, as regards the time and place of attendance. The second proviso to sub-sec. (1) further lays down that the provisions of Sec. 446A shall not in any way be affected by Sec. 436, Cr.P.C., which would mean that Sec. 446A shall be having an overriding effect. (Para 20)
After the rejection of the application by the trial court, the applicant had already approached the Sessions Court and the Sessions Court has examined the case on merits. On his being taken into custody, the applicant had moved the Sessions court for bail for the reasons stated above, the Sessions court did not think it proper to enlarge the applicant on bail. We can not loose sight of the fact that the applicant by his own conduct protracted the trial of the case by absconding for the first time for a period of about 6 years and second time, for a period of about 1 year. The trial has been considerably protracted on account of the said conduct of the applicant. In the circumstances, the applicant has forfeited the concessions to remain on bail. In our opinion, the application for bail has been rightly rejected by the learned Sessions Judge. (Para 24)
2. We may state the few relevant facts.
3. The applicant Johny Wilson was challaned in the court of Additional Chief Judicial Magistrate, No. 1, Jodhpur on August 20, 1977 after investiga-tion. 24.8.77 was fixed for scrutiny of challan. But on that date, the accused absented and jumped bail and continued to remain absconding upto 4.8.83 i.e. for about 6 years. Thereafter, on arrest, he was produced by the police on 5.8.83. He was released by the order of Sessions Judge, Jodhpur on 27.8 83. The accused again absented on 14.2.84 and continued to abscond till 2.1.85, on which date, he himself surrendered before the court and submitted an application for bail, which was rejected and he was sent to the judicial custody. Thereafter, an application was moved before the learned Sessions Judge, Jodhpur, who by his order dated January 15, 1985 rejected the bail application looking to the conduct of the accused-applicant that he had absconded twice for a considerable period and the learned Sessions Judge also considered that it would not be proper to large the accused on bail as it is likely that he may abscond and thereby the trial of the case may be protracted. Thereupon, the accused has moved this bail application under Sec. 439, Cr.P.C.
4. On behalf of the applicant, it was contended before Shri K.S. Lodha, J. that the applicant had already been granted bail, the forfeiture of the bonds does not amount to the cancellation of the bail already granted to him and the applicant is entitled to be released on bail on his again furnishing personal and surety bonds in accordance with the direction of the original order dated 27.8.83, under S. 447, Cr.P.C, The courts-below were wrong in refusing bail to him. In support of his contention, reliance was placed on the aforesaid two decisions The learned Judge expressed his unability to agree with the said two decisions and observed that the two decisions are based on S. 447, Cr.P.C. and it has been found that the Magistrate was empowered to demand a fresh surety bonds in accordance with the directions of the original order. However, the learned Judge observed that unfortunately, the provisions contained in Sec. 436 (2) as also Sec. 446A, which had been inserted by Act No. 63 of 1980, had not been brought to the notice of the learned Judges and he concluded that the view taken by the learned Judges in the aforesaid two cases, does not appears to be in consonance with the provisions of Section 436 (2) and 446A, Cr.P.C. It is in these circumstances, this application has come up-for consideration before us.
5. We have heard Shri Neelkamal Bohra, learned counsel for the appli-ant and Shri Niyazuddin Khan, learned Public Prosecutor for the State.
6. Shri Neelkamal Bohra, learned counsel for the applicant submitted that Sec. 447 deals with the procedure, when any surety to a bond under the Code becomes insolvent or dies, or when any bond is forfeited under the provisions of Sec. 446. In these circumstances, Sec. 447 empowers the Court to order the person from whom such security was demanded to furnish fresh security in accordance with the directions of the original order and in case, such security is not furnished, the court is empowered to proceed as if there has been a default in complying with the original order. The applicant was admitted to bail by the learned Sessions Judge. The forfeiture of the bonds under Sec. 446, Cr.P.C. does not effect the bail order. The bail order continues to have force and under the original bail order, after forfeiture of the bond, furnishing a fresh security, can be o
