Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
MOHAN LAL, J.
Makhan Lal – Petitioner
Versus
Union Territory of Jammu and Kashmir – Respondent
CRM (M) No. 364 of 2022
Decided On : 29-05-2023
INHERENT JURISDICTION - QUASHMENT OF ORDER - CrPC Section 482, NDPS Act Sections 8, 21, 22, 25, 29, CrPC Section 446 - The court discussed the provisions of Section 482 of the CrPC, which allows for the quashment of orders that are found to be illegal or improper. It also examined the NDPS Act sections related to drug offenses and the procedural requirements under Section 446 of the CrPC regarding the forfeiture of bonds. The court emphasized the necessity of following due process, including issuing notice and providing an opportunity for the accused to explain their absence before any forfeiture of cash security could be validly ordered. This legal framework influenced the court's decision to quash the trial court's order, as it failed to adhere to these procedural safeguards.
Fact of the Case:
The petitioner sought to quash an order from the trial court that dismissed his application for the release of cash security deposited for his son's interim bail, which was granted for medical treatment. The son had failed to appear in court, leading to the issuance of warrants against him. The petitioner argued that the trial court's order was made without proper consideration and that the cash security should not be forfeited as the bail conditions were still intact.
Finding of the Court:
The court found that the trial court did not comply with the procedural requirements of Section 446 of the CrPC, which necessitates that a bond can only be forfeited after the court is satisfied that a breach has occurred, following due notice to the accused. The court concluded that the principles of natural justice were violated in the trial court's proceedings.
Issues: Whether the trial court's order to forfeit the cash security was valid given the lack of notice and opportunity for the accused to explain their absence, and whether the provisions of Section 446 of the CrPC were properly applied.
Ratio Decidendi: The court established that before a bond can be forfeited under Section 446 of the CrPC, the court must issue a notice to the accused and provide an opportunity to explain any failure to appear. The absence of such procedural safeguards rendered the trial court's order invalid.
Final Decision: The court allowed the petition, quashed the trial court's order dated 15-02-2022, and directed that the application for the release of the cash security be dealt with afresh, ensuring compliance with legal procedures.
JUDGMENT :
MOHAN LAL, J.
1. Petitioner has invoked the Inherent Jurisdiction of this court under the provisions of Section 482 of the Code of Criminal Procedure (hereafter referred as the 'Code') for quashment of the order dated 15.02.2022 rendered by the trial court of Ld. Pr. Sessions Judge Samba in criminal challan titled UT of J&K Vs. Sandeep Sharma and Anr. for commission of offences punishable u/ss 8/21/22/25/29 of NDPS Act, whereby, the application of the petitioner seeking release of cash security of Rs. 100000/- (Rs. One Lac) deposited for grant of interim bail was dismissed.
2. Aggrieved of and dissatisfied with the impugned order dated 15-02-2022, petitioner has assailed it's legality, propriety and correctness and has sought its setting aside/quashment on the following grounds:
(ii) that the son of petitioner applied for interim bail for his medical treatment for a period of one month, Ld. Pr. Sessions Judge Samba vide it's order dated 21-01-2021 granted interim bail to the son of the petitioner for a period of 30 days from the date his surgery is conducted, on furnishing of surety and personal bonds besides the cash security of an amount of Rs. 100000/-.
(iii) that before the expiry of the aforementioned period of one month, son of the petitioner applied for the extension of the interim bail for his further treatment which remained pending before the Court of Ld. Pr. Sessions Judge Samba till 20-08-2021.
(iv) that after dismissal of the said application seeking extension of interim bail, son of the petitioner could not cause his appearance on the date of hearing, and warrants were issued against him, and on 31-08-2021 a police constable from Samba Police Station visited the house of the petitioner and told him that warrant has been issued against the son of the petitioner and he is required to come to police station Samba, and on the next day the son of the petitioner came to police station samba, he was arrested and later produced in the court.
(v) that on 10-09-2021, petitioner moved an application seeking release of the amount of Rs. 100000/- deposited as cash security for securing interim bail, however, Ld. Pr. Sessions Judge Samba vide its order dated 15-02-2022 dismissed the application of the petitioner.
(vi) that the impugned order dated 15-02-2022 has been passed by the trial court in a very causal and mechanical manner without application of mind, the bail and personal bonds furnished by the petitioner in terms of order dated 21-01-2021 passed by the trial court are still intact and never forfeited and there is no question of forfeiture of cash security as the trial court did not pass any order for forfeiture of cash security, there is no condition in order dated 21-01-2021 that in case of failure of the petitioner to surrender it would automatically result in forfeiture of cash security and once the accused has put up his appearance before the trial court, it cannot direct forfeiture of cash security when the bail and personal bonds of accused are intact.
3. Heard Ld. Counsel for petitioner and Ld. Dy. AG for respondent. I have gone through the relevant provisions of law governing the field and have also bestowed my thoughtful consideration to the material aspects involved in the case. Section 446 of Code of Criminal Procedure (Cr. P.C.) deals with the provision of Procedure When Bond Has Been Forfeited. For the sake of brevity, Section 446 is reproduced hereunder:
(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court
The court reaffirmed that the forfeiture of a bond under Section 446 of the CrPC requires adherence to procedural safeguards, including notice and an opportunity for the accused to respond, to uphold....
The main legal point established in the judgment is the requirement to adhere to the prescribed procedure under Section 446 CrPC for the forfeiture of surety bonds, including issuing show cause notic....
A surety must be afforded an opportunity to contest the imposition of a penalty for non-production of an accused, adhering to principles of natural justice.
Under Section 446(3) Cr.P.C., courts may discretionarily remit portion of penalty on forfeited surety bonds, factoring surety's sincere efforts, financial hardship and family impact, even in appeal t....
Court holds that the penalty for surety bond forfeiture must consider the surety's efforts and circumstances; excessive penalties can be modified at judicial discretion.
The court has discretion to remit penalties imposed on sureties under Section 446(3), considering the circumstances of the case and ensuring a fair outcome for the surety's financial status.
The court has discretion under Section 446 Cr.P.C to remit a portion of the penalty imposed on a surety, considering the financial situation of the surety and efforts to secure the accused's attendan....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
