Vittala Poojary vs State of Karnataka

Anand Byrareddy, J.—The appeal is filed after a delay of 87 days. I.A. 1/2014 is filed seeking to explain the delay and seeking condonation. It is stated that the appellant had initially filed a Criminal Petition before this Court questioning the very impugned judgment, which was disposed of with an observation that the appellant''s remedy was by way of an appeal and therefore, after the disposal of the petition, the present appeal is filed. Hence, the delay is condoned.

The learned State Public Prosecutor who has taken notice is heard. The appeal is considered for final disposal, having regard to the facts and circumstances.

It is stated that the Police Sub-Inspector, Panambur Police Station, Mangalore, had registered a case against three persons for offences punishable under Section 8(c) and Section 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the NDPS Act'', for brevity) and the said accused were charge-sheeted in Special Case No. 36/2010. Accused No. 2 Thajuddin Ahamed was released on bail by the Trial Court by its order dated 11.04.2011. The appellants herein had offered themselves as sureties for the due appearance of the accused before the court below on all dates of hearing and therefore, had executed bail bonds and affidavits in respect thereof. Later, it transpires that Accused No. 2 was found to be absconding and a split up case was registered against him in Special C.C. No. 62/2011 and an order dated 19.06.2012 was passed registering a case against the sureties herein under Section 446 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Cr.P.C.'', for brevity). The appellants are said to have appeared in the proceedings through a counsel. The court thereafter, by its order dated 29.09.2012 had proceeded to forfeit the bonds and the matter was being adjourned for payment of the amount involved. On 18.06.2004, it transpires that the Trial Court rejected the plea of the appellants for further time to deposit the amount and had issued non-bailable warrant to the appellants. However, it is pointed out that the grievance of the appellants was that the Trial Court had not passed any orders directing the appellants to show cause as to why they should not pay the penalty amount covered under the bond. This the learned counsel would submit is the tenor and the mandate under Section 446 Cr.P.C, which has been completely ignored in the court below having short-circuited the entire proceedings, proceeding to pass a sentence in issuing non-bailable warrant against the present appellants. The appellants state that assuming that there has been a default on the part of Accused No. 2 in absconding and that the bond furnished by the appellants stands forfeited, they are bound to pay the penalty and they would pay the same forthwith and seek that appropriate orders be passed while setting aside the orders impugned of the court below.

The learned State Public Prosecutor states that apparently, from a reading of the orders passed by the court below, there is lapse in not following the procedure prescribed under Section 446 Cr.P.C. in proceeding against the appellants and would submit that appropriate orders may be passed.

Secondly, since the court below has not chosen to put the appellants on notice as to why penalty ought not to be imposed on them and directing them to pay penalty, the appellants straightaway having been taken into custody on the basis of a non-bailable warrant and being incarcerated, results in a miscarriage of justice.

Therefore, the appeal is summarily allowed. The judgment of the court below is set at naught.

The matter is remanded to the Trial Court for a fresh consideration. The court below shall follow the procedure contemplated under Section 446 Cr.P.C, in taking any further proceedings against the appellants. The appellants being remanded to custody by virtue of the warrant having been executed against them, is set at naught and they shall be set at liberty.