Moyidu Kunhi Vs the State of Karnataka

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NC: 2025:KHC:1939 CRL.A No. 2198 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO. 2198 OF 2024

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BETWEEN:

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MOYIDU KUNHI, S/O AHAMMED KUNHI, AGED ABOUT- 69 YEARS, OCC: AGRICULTURE, R/AT 4 -130 CHODIKKERI HOUSE, KARNOOR, NETTANIGEMUDNOOR, KARNOOR, D.K. 574 313.

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B. MOHAMMED, S/O IBRAHIM, AGED ABOUT 62 YEARS, R/O DOOR NO.4-8 BEDRADY, KARNOOR VILLAGE, NETTANIGEMUDNOOR, PUTTUR TALUL, D.K. - 574 313.

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(SURETIES BEFORE SESSION COURT)

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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(BY SMT. POOJA KATTIMANI, ADVOCATE FOR

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SRI. DINESHKUMAR RAO K., ADVOCATE)

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…APPELLANTS

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AND:

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THE STATE OF KARNATAKA BY E AND N CRIME POLICE STATION, MANGALORE - 575 001 REP BY SPP, HIGH COURT, BENGALURU - 01.

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…RESPONDENT

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(BY SRI. CHANNAPPA ERAPPA, HCGP)

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THIS CRL.A IS FILED U/S 449 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD 05.11.2024 PASSED

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NC: 2025:KHC:1939 CRL.A No. 2198 of 2024

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BY THE PRINCIPAL SESSION AND SPL. JUDGE, D.K., MANGALORE, IN SPL.C.NO.56/2022, DIRECTING THE APPELLANTS TO PAY BOND AMT OF RS.2,00,000/- EACH, AS PER BAIL ORDER IN CRL.P.NO.1721/2020.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Smt.Pooja Kattimani, learned counsel appearing for Sri.Dinesh Kumar Rao K., learned counsel for the appellants and Sri.Channappa Erappa, learned High Court Government Pleader for the respondent/State.

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Present appeal is filed by surety seeking remission of the Bond amount. Facts in the brief which are utmost necessary for the disposal of the present appeal are as under:

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A criminal case came to be filed by E and N Crime Police Station, Mangaluru City, against Hamza and others for the offences punishable under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). Allegation in the complaint reveals that 10 grams of MDMA powder was recovered from each of accused persons in the raid which is of commercial quantity. However, the accused were

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NC: 2025:KHC:1939 CRL.A No. 2198 of 2024

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enlarged on bail and present appellants were the sureties for accused No.2 who executed a surety bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) to secure the presence of accused No.2 before the trial Court, on all dates of hearing.

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Admittedly accused No.2 jumped the bail.

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Thereafter left with no alternative learned Trial Judge issued Non Bailable Warrant to accused No.2 and show-cause notice to sureties of accused No.2 (appellants) as to why the bond amount need not be forfeited for non production of accused No.2 before the Trial Court.

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In fact, sureties, after service of notice, appeared before the Court on 10.10.2024 but failed to produce accused No.2. Learned Trial Judge granted time for appellants to

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produce the accused No.2. Matter stood adjourned to 05.11.2024 from 10.10.2024 and fresh Non Bialable Warrant was also issued against accused No.2.

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The material on record shows that for want of the presence of accused No.2, trial against other accused persons were also not proceeded and said state of affairs was from March, 2024.

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NC: 2025:KHC:1939 CRL.A No. 2198 of 2024

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On 05.11.2024 when the case was again listed before the Trial Court, Non Bailable Warrant issued against accused No.2 returned unexecuted and sureties of accused No.2 (appellants) failed to secure the presence of accused No.2 resulting in forfeiture of the entire bond amount of Rs.2,00,000/- (Rupees Two Lakhs Only) each.

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Learned Trial Judge has noted that as per the bail order passed by this Court in Crl.P.No.1721/2020, the bond amount of Rs.2,00,000/- (Rupees Two Lakhs Only) each of the appellants is to be forfeited.

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Being aggrieved by the same, the sureties of accused No.2 are before this Court in this appeal by failing an appeal under Section 449 of Cr.P.C corresponding provision 495 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS').

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Smt.Pooja Kattimani, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that the learned Trial Judge failed to offer proper opportunity for the sureties as to why the bond amount should not have been forfeited. In other

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NC: 2025:KHC:1939 CRL.A No. 2198 of 2024

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words, appellants assail the impugned order on the ground of violation of principles of natural justice and not following the procedure for forfeiture of the bond executed by the appellants as sureties of accused No.2 in Spl.C.No.56/2022 on the file of Special Judge, Mangaluru.

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Per Contra, learned High Court Government Pleader supports the impugned order. He further contended that appellants standing as sureties pursuant to the bail order passed by this Court referred to Supra, voluntarily stood as sureties and there was no compulsion on them to stand as surety.

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He further, emphasized that but for the absence of accused No.2, the trial would have been progressed before the learned Trial Judge and the trial got scuttled on account of non presence of accused No.2 from March, 2024 and whenever there is a trial in respect of a offence under the provisions of NDPS Act, trial has to be concluded as early as possible.

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He would also contend that accused failed to utilize the opportunity of granting time from 10.10.2024 to 05.11.2024 in securing the presence of the accused No.2 and

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NC: 2025:KHC:1939 CRL.A No. 2198 of 2024

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therefore, the order of forfeiture of entire bond amount is thus justified and sought for dismissal of the appeal.

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In reply, Smt.Pooja Kattimani, learned counsel for the appellants files a memo, memo reads as under:

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“ That appellants will furnish 50% of the bond amount of Rs.2,00,000/- each as per the order dated 17/1/2025”.

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Having heard the parties in detail this Court perused the material on record meticulously. In view of the above, rival contention of the parties, this Court perused the material on record meticulously. On such perusal of the material on record, following point would arise for consideration:

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"Whether the appellants have made out a case for remission of the portion of the bond amount?"

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In the case on hand, there is no dispute that the appellants stood as sureties for the accused No.2 who has been granted bail by this Court in Crl.P.No.1721/2020. Admittedly, bond is in a sum of Rs.2,00,000/- (Rupees Two Lakhs Only).

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NC: 2025:KHC:1939 CRL.A No. 2198 of 2024

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Accused No.2 failed to appear before the Court on and from 19.03.2024. Efforts made by the Trial Court to secure the presence of accused No.2 by issuing Non Bailable Warrant did not yield any positive result.

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Ultimately, left with no alternative, learned Trial Judge not only re-issued the Non Bailable Warrant to accused No.2 but also show-cause notice to the sureties of accused No.2 (appellants herein), as to why the bond amount executed by the appellant should not be forfeited.

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Admittedly, there was no reply filed by the appellants nor any cause was shown by the appellants as is contemplated under the statute in non-securing the presence of accused No.2. Appellants had the services of an advocate to represent them which is found from the order sheet dated 10.10.2024. No application whatsoever was also filed by the appellants seeking remission of the bond amount nor to discharge the responsibility of the surety in securing the presence of the accused No.2 on the next date of hearing - 05.11.2024.

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NC: 2025:KHC:1939 CRL.A No. 2198 of 2024

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Even on 05.11.2024, there was no request made to

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the Court in the form of remission of the part of the bond amount or the entire bond amount nor the appellants were successful in securing the presence of the accused No.2 or atleast furnish the where abouts of accused No.2.

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Therefore, the Trial Judge noticing the fact that the appellants have failed to discharge the responsibility as the surety, forfeited the entire bond amount. No doubt, the order of the learned Trial Judge is not happily worded nor any specific reasons are forthcoming from the order of the learned Trial Judge as to the forfeiture of the entire bond amount but conduct of the sureties are depicted from the other material on record.

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While expressing displeasure in not passing a suitable reasoned order for the forfeiture of the entire bond amount on the part of the learned Trial judge, this Court cannot shut its eyes to the proceedings that have taken place before the Trial Court that too in a heinous offence like offence under

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the provisions of NDPS Act, in scuttling the progress of the case only on account of non appearance of accused No.2. Thus, sureties having failed to discharge their responsibility, this

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NC: 2025:KHC:1939 CRL.A No. 2198 of 2024

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Court is of the considered opinion that there cannot be an order of remission of the entire bond amount. Taking note of the fact that appellant No.1 is aged at 69 years and appellant No.2 is disabled, the case of the appellants needs to be considered with some amount of leniency. More so, having regard to the memo filed on behalf of the appellants.

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Under such circumstances this Court is of the considered opinion that in view of the principles enunciated by the Co-ordinate Bench of this Court in the case of

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K.S.Shivanna Vs State Of Karnataka, Tiptur Town Police

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reported in ILR 2003 Karnataka 1065 , 50% of the bond amount of each of the appellants needs a remission by exercising the powers vested in this Court under the provisions of Section 449 Cr.P.C corresponding Section of 495 BNSS. Accordingly, the point is answered partly in the affirmative and following order is passed.

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ORDER

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i) The appeal is allowed-in part.

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ii) Out of the bond amount of Rs.2,00,000/(Rupees Two Lakhs Only) each of the appellants, appellants are entitled for

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NC: 2025:KHC:1939 CRL.A No. 2198 of 2024

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remission of the 50% of the bond amount, meaning thereby each of the appellants are directed to pay portion of the bond amount of Rs.1,00,000/-(Rupees One Lakh Only) on or before 10.02.2025, failing which necessary steps to be taken to recover the same as arrears of land revenue.

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Sd/(V SRISHANANDA)

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JUDGE

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BKN

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List No.: 1 Sl No.: 48

Moyidu Kunhi v. the State of Karnataka

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Moyidu Kunhi v. the State of Karnataka

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