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2024 Supreme(Online)(RAJ) 27702
HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
MR. JUSTICE ARUN MONGA, J
AMIT KUMAR DAVE – Appellant
Versus
STATE OF RAJASTHAN – Respondent
CRLMP / 7523 / 2024
Mr. S.P. Sharma, Mr. Shri Ram Choudhary, P.P.
The court emphasized the necessity of procedural safeguards before declaring an individual as absconding and the judicious exercise of judicial discretion regarding personal appearance and costs.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973 - Sections 82, 83, and 446 - Quashing of orders for dishonour of cheque - The trial court's order forfeiting bail bonds and declaring the petitioner as absconder was set aside due to failure to provide adequate notice and opportunity to explain absence. The court emphasized the need for adherence to procedural safeguards before declaring an individual as a proclaimed offender. (Paras 5, 6, 10, 14)
(B) Judicial Discretion - The court reiterated that the discretionary power must be exercised judiciously, particularly regarding the imposition of costs and conditions for personal appearance, which should not be arbitrary or excessive. (Paras 8, 12, 14)
Facts of the case:
The petitioner sought quashing of the trial court's order declaring him an absconder for failing to appear due to his wife's illness, leading to the issuance of an arrest warrant. The trial court's actions were deemed excessive and procedurally flawed.
Findings of Court:
The court restored the original bail bonds and set aside the trial court's order, emphasizing the importance of procedural compliance and the rights of the accused.
Issues: The main issues included the validity of the trial court's actions in declaring the petitioner an absconder and the imposition of costs for non-appearance.
Ratio Decidendi: The court ruled that the trial court must provide adequate notice and opportunity before declaring an individual as absconding, and that judicial discretion must be exercised with caution and justification.
Result: The impugned order was set aside, and the original bail bonds were restored.
Order
24/10/2024
1. Petitioner/accused seeks quashing of orders dated 10.09.2024 passed by the Learned Additional Chief Judicial Magistrate No.1, Jalore, in Criminal Case No.4745/2014, pending under Section 138 of N.I. Act, for dishonour of a cheque for an amount of Rs.9,20,000/-. Learned trial court has forfeited his bail bonds, declared him as absconder, arrest warrant was issued against him, initiated proceedings under Section 82 & 83 Cr.P.C.
against him and under Section 446 Cr.P.C. against his surety.
2. Heard and perused the case file as well as the order impugned herein.
3. On a query posed by the Court regarding the default caused by the petitioner in his personal presence, learned counsel states that on 10.09.2024 and 11.09.2024, the petitioner had to attend to his ailing wife, who suddenly taken very ill. Under these circumstances, he had requested his counsel to take appropriate steps by filing an application to seek his exemption from personal appearance. However, the learned trial court took a harsh view of the matter, under the impression that the reasons stated by the petitioner in the application were not genuine. He further states that the petitioner had no intention at any stage of causing a delay in the proceedings and that it was under these circumstances, which were beyond his control, that he could not appear on the fateful day, as there was no one else in the family to look after his wife. The petitioner’s inability to appear was due to unforeseen circumstances beyond his control. Therefore, his arrest warrant may be converted into bailable warrant, he argues.
4. Learned PP would support the impugned order passed by both the learned court below for the reasons stated therein.
5. Reference may be had to a judgment in Mohammad Haras Vs. State of Punjab,
“6. No doubt, learned trial Court has got discretion to cancel the bail, however, it is well settled that before passing such an order, Court is required to issue notice to the accused so as to afford him an opportunity to explain as to why the bail should not be cancelled. Such course has not been adopted by learned Judge, Special Court, Sangrur in the instant case. On this ground alone, impugned order to the extent of cancellation of bail deserves to be set aside.
7. Moreover, cancellation of bail is a serious matter and can have significant impact on the life of a person. Matters of personal liberty ought not to be taken so lightly and in such mechanical manner as in the case herein.
8. In the premise, impugned order is set aside. Earlier bail order stands revived on bail bond and surety bond already furnished by petitioner before learned trial Court. Petitioner is directed to join proceedings before learned trial Court within three weeks from today and shall continue to appear before learned trial Court without default.”
6. As regards the directions issued by the learned trial court to initiate proceedings under Section 82/83 of Cr.P.C. against the petitioner coupled with invocation of section 446 of Cr.P.C. against the sureties, the same are also a serious procedural fallacy committed by the learned magistrate and cannot be sustained.
7. Reference may be had to two different judgments i.e. one on the guidelines enunciated qua invocation of Section 82/83 of Cr.P.C. and the other is with respect to guidelines enunciated for following the procedure to take steps under Section 446 Cr.P.C.
Relevant of both judgment is hereinbelow:-
Pradeep Kumar Vs. State of Punjab and Anr. ,
“13.1 The declaration of an individual as a proclaimed person or offender, as contemplated under Section 82 of the Code of Criminal Procedure (hereafter
