N. Rangarajan vs State of Orissa

A.K. Parichha, J.—Learned Addl. Standing Counsel accepts notice on behalf of the State of Orissa. Mr. B.C. Swain and his associates have filed Vakalatnama for Bhabanishankar Jagadev Mohapatra, who stands surety for the vehicle in question.

Though the matter has been listed for admission, on the consent of the learned counsel for the parties, it is taken up for final disposal at the stage of admission.

Heard learned counsel for both parties. A vehicle bearing Registration No. T.N.04/K-9578 was seized in connection with Jankia P.S. Case No. 106 of 2003 corresponding to G.R. Case No. 607 of 2003 of the Court of learned S.D.J.M., Khurda. The said case after commitment to the Court of learned Sessions Judge was renumbered as S.T. Case No. 46/267 of 2003 and is now pending in the Court of learned Ad hoc Additional Sessions Judge, Khurda. During the pendency of the case a petition u/s 457, Cr.P.C. was moved by the petitioner for interim release of the said vehicle and the Court allowed the said prayer by order dated 29.7.2003 putting some conditions, one of the conditions being that the petitioner shall execute an indemnity bond of Rs. 2,00,000/- (Two lacs) with one surety. The petitioner furnished that indemnity bond with suretyship of Bhabani Shankar Jagadev Mohapatra and in due course, vehicle was given in zima of the petitioner. Later on Bhabani Shankar Jagadev Mohapatra filed an application before the trial Court alleging that the petitioner is contemplating to sell the vehicle in question and for that reason he does not want to continue as the surety. After hearing on the petition, the trial Court by order dated 28.2.2005 directed that on production of the Vehicle in question before the O.I.C. Jankia P.S. the surety will be discharged of his responsibility and the O.I.C. would thereafter keep the vehicle in his custody. Aggrieved by the said order the petitioner has filed the present application u/s 482. Cr.P.C. for quashing of that order dated 28.2.2005.

Mr. S.C. Acharya, learned counsel for the petitioner submits that the impugned order is against the provision and spirit of law and is unsustainable. According to him, when the surety expressed his reluctance to continue as the surety in respect of the indemnity bond, the trial Court should have given an opportunity to the petitioner to furnish a fresh surety and on furnishing the same, it should have allowed the vehicle to remain in zima of the petitioner. Mr. B.C. Swain, appearing on behalf of the surety Bhavani Shankar Jagadev Mohapatra submits that the vehicle is in the custody of the petitioner and unless he produces the same, he is not being discharged of his suretyship. He submits that the petitioner should be directed to produce the vehicle forthwith and thereafter Bhavani Shankar Jagadev Mohapatra should be relieved of the suretyship.

Learned Addl. Standing Counsel submits that since the surety has expressed his unwillingness to continue as surety for the indemnity bond the petitioner is duty bound to produce the vehicle before the O.I.C., Jankia P.S. as directed by the Court and not having done so, he has forfeited his right to continue in zima of the vehicle.

By order dated 29.7.2003 the learned S.D.J.M., Khurda directed release of the vehicle in question in zima of the petitioner on execution of indemnity bond of Rs. 2,00,000/- and on giving an undertaking that the vehicle would be produced in the Court during trial or enquiry or as and when directed and also that the colour of the vehicle would not be changed and the vehicle would not be disposed of without prior permission of the Court. After fulfilling of these conditions the vehicle was released in favour of the petitioner. Then the surety Bhavani Shankar Jagadev Mohapatra expressed his willingness to continue as surety.

When the surety expressed reluctance to continue it was incumbent on the part of the Court to give an opportunity to the petitioner to furnish a new surety in place of the old surety Bhavani Shankar Jagadev Mohapatra, if the petitioner would have failed to furnish any fresh surety for the indemnity bond then the order of releasing the vehicle in zima of the petitioner should have been recalled. But without giving any opportunity learned trial Court directed to the petitioner to produce the vehicle and also directed the O.I.C., Jankia P.S. to keep the vehicle in his custody. Therefore, the order is contrary to the spirit and provision of Section 457, Cr.P.C. and therefore, the same is unsustainable. It is pertinent to note that unless the vehicle is produced the existing surety Bhavani Shankar Jagadev Mohapatra is not going to be absolved of his liability. Therefore, the petitioner should produce the vehicle within a month hence before the O.I.C., Jankia P.S. and on production of the vehicle in proper condition the surety Bhavani Shankar Jagadev Mohapatra shall be absolved of his responsibility as surety of the indemnity bond. Thereafter, if the petitioner furnished a fresh surety for the indemnity bond of Rs. 2 lacs to the satisfaction of the trial Court, then the vehicle shall be released in the zima of the petitioner on the same condition which had been set forth in the order dated 29.7.2003.

With these observations the CRLMC stands disposed of.