T.A. Mahesha @ Madappa vs The State

Subhash Badi

This appeal is by the accused No, 1 against the order dated 09.09.2011 in SC No. 24/2005.

The appellant-accused No.1 and others are being tried by the Sessions Court for the offences punishable under Sections 341, 143, 144, 147, 148, 323, 324, 302 r/w Section 149 of IPC. The accused No. 1 had approached this Court to Criminal Petition No. 2891/2006 seeking his enlargement on bail. This Court, by order dated 29.11.2006 allowed the bail application and enlarged the accused No. 1 on bail subject to following conditions:

i) that the petitioner shall be released on bail on his executing a bond for Rs. 50,000/- with one surety for the likesum to the satisfaction of the trial Court;

ii) that the petitioner shall make his own arrangements to attend the Court on all dates of hearing,

iii) it is made dear that he shall not seek exemption from personal appearance on medical grounds and shall take requisite steps so that he does not commit default in attending the Court;

iv) the petitioner shall not tamper or attempt to tamper with the prosecution evidence.

Condition. No. 3 required that, the accused shall not seek exemption from personal appearance on medical grounds and shall take requisite steps so that he does not commit default in attending the Court. However, accused No. 1 remained absent on 26.10.2010. An application was filed u/s 317 of Cr.P.C for exemption of the appearance of the accused No. 1 on the said date. In view of the conditions imposed by this Court, the trial Court posted hearing of the application u/s 317. of Cr.P.C to 211.2010. Even on 2.11.3010, the accused No. 1 was absent. On 16.11.2010, the trial Court passed an order on application filed u/s 317 Cr.P.C interalia. rejecting the said application and directed the re-issue--of NBW to the accused No. 1. On 25.11.2010, since the accused No. 1 had not appeared, the trial Court re-issued NBW and also issued notice to the surety. In pursuance of the notice, the surety appeared on 24.12.2010 and submitted that accused Nos. 1 and 8 are in Bangalore hospital and sought time to produce them. On 05.02.2011 the surety submitted that he would furnish the address of the Bangalore hospital where accused No. 1 is admitted. Accordingly, the matter was adjourned to 26.02.2011. However, on 26.02.2011 accused No. 1 was not produced. NBW was re-issued to accused Nos. 1, 6 and 8 and posted the matter to 26.3.2011. In the meanwhile, the surety produced the accused No.1 on 04.03.2011 by seeking advancement of the case, since the application of exemption of accused No.1 was rejected on 16.11.2010, the trial Court remanded accused No.1 to the judicial custody and directed the jail authority to provide medical treatment to the accused No. 1.

Learned counsel for accused No. 1 filed an application u/s 446A of Cr.P.C seeking permission to furnish fresh personal bond for Rs. 50,000/- with surety for the likesum as directed by this Court in Criminal Petition No. 2891/2006 and also alleged that the surely has not been discharged as such the accused can not be remanded to judicial custody. However, the said application was rejected by the order impugned in this appeal.

Heard the learned Counsel for the appellant and learned High Court Government Pleader for the State.

This Court on medical grounds admittedly has enlarged accused No. 1 on bail. Order sheet produced by the learned Counsel for the appellant also shows that when the accused remained absent on 26.10.2010, an application was filed for exemption, mentioning that he is under treatment. Even surety who appeared in pursuance of the notice Issued by the trial Court had also submitted that the accused Nos. 1 and 8 are in Bangalore hospital. He also furnished the address of the accused Nos. 1 and 8 as being treated in Bangalore hospital. The surely also produced accused No. 1 on 04.03.2011. The trial Court has not disbelieved that the accused No. 1 is under treatment in turn it has directed the jail authority to provide medical treatment to the accused No. 1.

No doubt, this Court had imposed stringent conditions directing the accused No 1 to be present on all the hearing dates and shall not seek exemption, however what appears from the order sheet is that accused No 1 was not absconding and had not deliberately remained absent. It is found that he was under treatment in a hospital and he has furnished fresh surety and personal bond. The trial Court though issued notice to the surety, but has not cancelled the surety bond, nor discharged the surety. No doubt, it is submitted that, issue of NBW to the accused and notice to the suety states that surety bond stands cancelled.

However, taking into consideration that the accused No. 1 was not absconding nor has deliberately remained absent and he was released on bail on medical ground, now also the accused No. 1 is under treatment, I find that the ends of justice would be met by enlarging the accused No. 1 on bail. I find that accused No. 1 be enlarged on bail by permitting him to furnish fresh personal bond and fresh surety. It in also submitted that the trial Court has already recorded the evidence of 22 witnesses. Hence, I pass following order:

ORDER

i) Appeal is allowed.

ii) Accused No. 1 is enlarged on bail subject to accused No. 1 furnish the personal bond for Rs. 50,000/- with two sureties for the likesum and also subject to the other conditions already imposed by this Court in Criminal Petition No. 2891/2006.

iii) The trial Court shall expedite the matter as early as possible.

iv) The accused No.1 shall co-operate and keep himself present on dates of bearing and co-operate for speedy disposal of the case.