Rajasthan High Court Sets Aside Bail Cancellation, Proclamation Proceedings And Action Against Surety U/S 446 CrPC In Rash Driving Case

Reiterating that trial court's discretion to cancel bail must be preceded with a notice to the accused to defend themselves, the Jodhpur bench of the Rajasthan High Court recently set aside an order cancelling a man's bail which also declared him an "absconder" in a rash driving case.

A single judge bench of Justice Arun Monga set aside a magisterial court's order which had further directed initiation of proceedings against the petitioner under Cr.PC Sections 82 and 83 and under Section 446 against his surety separately.

For context, Section 82 CrPC empowers any court which has a reason to believe that any person against whom an arrest warrant has been issued has absconded or is evading arrest, to publish a written proclamation requiring such person to appear at a specific place and time. Section 83 further authorizes the court to order attachment of the absconder's property after issuing the order of proclamation. Section 446 pertains to the procedure which is to be followed when bond is forfeited.

Background

The petitioner claimed that the trial court order was passed in 2019, however, on that day, the petitioner was not able to appear due to his son's accident and he was also not properly informed by his counsel about the requirement of his personal presence in the trial proceedings. But despite his non-appearance being due to factors beyond his control, his bail bonds were cancelled and proceedings under Section 82 & 83 and under Section 446 of the Cr.P.C. against his surety were ordered.

Subsequently the case file was sent to the record room and the petitioner's counsel stopped appearing in the trial proceedings. Further the petitioner argued that he stopped hearing anything from his counsel. Owing to lack of communication, the petitioner thought that the pending criminal proceedings against him have been dropped by the Court and he said that he had become lax in following up on the matter before the trial court. It was only this year, that steps were taken to implement order of the trial court and until then, the petitioner was not aware of the same.

The counsel for the petitioner argued that in these circumstances, the dereliction on part of the petitioner was not intentional and hence, the arrest warrant must be converted into bailable warrant.

Findings

Justice Monga referred to Mohammad Haras v State of Punjab & Ors. (2023) delivered by him when he was a judge of the Punjab and Haryana High Court wherein he had said, "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…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.”

The high court further noted that trial court's direction to proceed against the petitioner's sureties under Section 446 Cr.P.C. is also a serious procedural fallacy and cannot be sustained. It referred to another decision of the Punjab and Haryana High Court in Varinder Singh Vs. State of Punjab which laid down the procedure to be followed by courts governing the discharge of a surety, forfeiture of bond and steps to be taken for imposing the penalty upon the surety.

In Varinder Singh the court had observed that an individual who stood surety for someone released on bail has the right to apply to the Court to be discharged from his responsibilities. Upon receiving the application from the surety, the Court will issue a warrant of arrest for the person released on bail for production. Once the person is brought before the Court, the Court shall direct the surety bond to be discharged. Once discharged the person on bail will have to find another surety and if he fails to do so the court may commit him to jail.

Notably, the decision states that if a bond is executed for the appearance of a person before a court or for the production of property and it is proven to the court's satisfaction that the bond has been forfeited, the court must "record the grounds for such proof". If a bond is forfeited in any other context, the court must "record the grounds for forfeiture". The court may call upon the person who is bound by the bond (surety) to either pay the penalty specified or to show cause why penalty should not be paid. If sufficient cause is not shown and the penalty is not paid, the court can impose the penalty.

The high court further referred decision of the Punjab and Haryana High Court in Pradeep Kumar v State of Punjab and Anr. in which it was observed that initiating proceedings under Section 82 of CrPC had far reaching implications significantly affecting the fundamental rights to life, liberty and property. The court had gone on to frame certain guidelines for issuance of proclamation under Section 82, CrPC. The Punjab and Haryana High Court had held that before such issuance, court must deliberate its previous efforts to secure the presence of concerned individual including summons, and bailable/non-bailable warrants. It had said that court was obligated to ascertain absconding of the accused or his evasion of the arrest warrant. The court had further opined that the phrase “reason to believe” under Section 82, CrPC required the court to derive such belief from available evidence and materials.

In view of these decisions, Justice Monga held that the 2019 order directing the forfeiture of bail bonds and initiation of proceedings against him Section 82 & 83 CrPC and his surety under Section 446 CrPC has to be "necessarily set aside".

"Consequently, the impugned order dated 24.01.2019 is set aside. The original bail bonds of the petitioner accused as well as bonds of his sureties are restored and trial to proceed further, in accordance with law. Disposed of accordingly," the high court said.

Case Title: Visha Bhai v State of Rajasthan

Citation: 2024 LiveLaw (Raj) 276

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