Partly allowed

Md. Mansoor and Ors. v. The State Of Bihar

Patna HC1 May 2013CR. MISC./35890/2012

Case brief

AI extract

What is this about?

Petitioners challenged bail cancellation order due to alleged absence on two consecutive dates. Court found conditions violated as personal appearance was not given. While no show-cause notice required for violation-induced cancellation, court allowed bail if sufficient cause proven and directed trial court to consider plea promptly.

What did the court decide?

Dismissed petition to interfere with cancellation order; directed trial court to consider explanation for non-appearance and allow bail if sufficient cause shown, preferably on same day.

Md. Mansoor and Ors. Vs The State Of Bihar — Bail and Remand | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Miscellaneous No. 35890 of 2012

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====================================================== 1. Md. Mansoor, Son of Abdul Sattar 2. Md. Kamrul @ Qamrul, Son of Abdul Sattar 3. Md. Jamrul @ Jamir, Son of Abdul Sattar 4. Abdul Sattar, Son of Late Mumtaz Ali All are residents of Village-Banikol, P.S.- Barari (Semapur), District - Katihar. .... .... Petitioner/s Versus 1. The State of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Bal Krishna Mishra, Advocate For the Opposite Party/s : Mr. Parmeshwar Mehta, A.P.P.

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====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER

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2 01-05-2013

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Heard.

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This is a petition for quashing the order dated 25.05.2012 passed by learned Chief Judicial Magistrate, Katihar in Barari (Semapur) P.S. Case No. 98 of 2011 instituted on the basis of Complaint Petition bearing No. 3337 of 2010 by which he has cancelled bail bond of the petitioners.

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The fact in a narrow compass is that the petitioners were earlier granted bail by this Court vide order dated 19.09.2011 passed in Cr. Misc. No. 28975 of 2011 by which additional condition was imposed to attend the court regularly at least for two years or till disposal of the case, whichever is earlier and in the event of failure to appear in the court on two

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Patna High Court Cr.Misc. No.35890 of 2012 (2) dt.01-05-2013

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consecutive dates, without any reasonable explanation, the privilege granted to the petitioners shall be deemed to be cancelled.

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The order dated 25.04.2012 shows that attendance on behalf of the petitioners was filed and a direction was issued to remain present personally on the next date. The order dated 25.05.2012 shows that attendance has been filed on behalf of the accused petitioners. The case called out but none responded to the call. Since this Court while granting bail to the petitioners imposed condition that failure to appear in the court on two consecutive dates, without any reasonable explanation, the privilege granted to the petitioners shall be deemed to be cancelled, the attendance filed appeared to be fabricated and bogus and thus the bail bonds of the accused persons are cancelled.

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The learned counsel for the petitioners submits that they have not violated the condition as the petitioners were present on the previous date i.e. 25.04.2012. They further contended that though they were not present in court on 25.05.2012 but were sitting on the table of their Advocate in court premises. Their Advocate had not come to the court as his mother had died and their Advocate had instructed his

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Patna High Court Cr.Misc. No.35890 of 2012 (2) dt.01-05-2013

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Junior to file Hazari. Since they were not instructed to appear in person they remain seated on the table of their Advocate. Learned counsel for the petitioners further contended that while cancelling the bail bonds of the petitioners and issuing non-bailable warrant of arrest no opportunity was given to the petitioners-accused persons to explain as to why they did not appear on the date fixed and hence, the order cancelling the bail bonds and issuing non-bailable warrant of arrest is not sustainable in the eye of law. Reliance has been placed by the learned counsel for the petitioners on the case of Md. Ekhlaque Alam vs. The State of Bihar & Anr. reported in 2012(1) PLJR 269 and Arefabee Sk. Mohammad & Anr. v. State of Maharashtra reported in 2007 Cri.L.J. page 842.

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The submission made by the petitioners that they were present in court on 25.04.2012 and hence, they have not violated the conditions imposed by this Court to cancel their bail bond for their absence on two consecutive dates. However, taking into consideration the order-sheet dated 25.04.2012, it is apparent that Hazari has been filed on behalf of the petitioners. However, filing of the Hazari by an accused is one thing and to remain present in court personally is another thing. The mere filing of the Hazari by accused does

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Patna High Court Cr.Misc. No.35890 of 2012 (2) dt.01-05-2013

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not amount to personal appearance of the accused in court. The non-appearance of the petitioners in court on 25.04.2012 is further indicated from the order when the court has given specific direction to the petitioners to appear in person in court on the next date as per direction of this Court. Hence, there is no merit in the submission that petitioners appeared in person in court on 25.04.2012. However, the submission that the petitioners were present in court premises on 25.05.2012 but were sitting on table of their Advocate and they did not appear on the date fixed and Hazari filed by the Junior of their Advocate as the Advocate had not come to court as the mother of the Advocate was dead but the submission itself indicates that they were not present in court on 25.05.2012 personally.

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However, apparently the petitioners were neither present in court on 25.04.2012 nor present in court on 25.05.2012 when the case was called out and as per the condition imposed by this Court having been violated the court below was well justified in cancelling the bail bond as per the condition imposed by this Court. There is no requirement to issue show cause before cancelling the bail bond and issuing non-bailable warrant, in cases when there is

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Patna High Court Cr.Misc. No.35890 of 2012 (2) dt.01-05-2013

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apparently violation of the condition. However, the petitioners if for some reason could not appear on the date, they may have appeared on the very next date or even on same date having the knowledge of the cancellation of bail may have moved the court showing his reason for not appearing on the ground of any confusion or due to death of the mother of Advocate concerned and the trial court may have considered it as good cause for non-appearance.

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The reliance of the decision of the 2012 (1) PLJR 269 Md. Ekhlaque Alam vs. The State of Bihar & Anr. has been placed for proposition that power to cancellation of bail the petitioner required to have been noticed. However, the fact of the case reported in 2012 (1) PLJR 269 is that the informant filed a petition for cancellation of bail on ground that the petitioner has been granted bail by fraudulently suppressing the fact that his anticipatory bail is pending in which the case diary was called for and swearing false affidavit that he has not filed any bail petition. On the petition for cancellation of bail by the informant bail was cancelled without notice. In that circumstance it was held that cancellation of bail without giving opportunity to rebut the allegation of fraud is not permissible. However, the case in

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Patna High Court Cr.Misc. No.35890 of 2012 (2) dt.01-05-2013

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hand is not regarding the cancellation of bail on petition of the informant but due to the violation of condition imposed by this Court that the bail deemed to be cancelled and hence, no notice is required.

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In decision reported in Arefabee Sk. Mohammad & Anr. v. State of Maharashtra 2007 (1) Cr L. J. 842, the fact is that the bail bond of the petitioners was cancelled on the ground that they were not present in court. On the next date the petitioners appeared and filed petition that they could not appear on the date because of the sad demise of his mother hence, shown sufficient cause. It was held interpreting Cl. (b) and proviso to Section 446-A that person can be released if he shows sufficient ground that he could not appear. However, the petitioners did not appear before the court below nor filed any petition showing sufficient cause for non-appearance.

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Hence, having regard to the facts and circumstance of the case, I do not find merit to interfere with the order dated 25.05.2012. However, petitioners are directed to appear before the court below and file a petition explaining the cause for not appearing on two consecutive dates and the trial court is directed to consider and if it is found that there is sufficient cause for his non-appearance on confusion as the

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Patna High Court Cr.Misc. No.35890 of 2012 (2) dt.01-05-2013

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death of the mother of the Senior Advocate has taken place making out sufficient ground for non-appearance shall allow him to bail on the same ground and the petition shall be considered and disposed off preferably on the same day.

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This application is, accordingly, disposed of.

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Let this order be communicated through FAX at the cost of the petitioners.

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(Gopal Prasad, J)

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Kundan/-

Md. Mansoor and Ors. v. The State Of Bihar

Case brief

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Md. Mansoor and Ors. v. The State Of Bihar

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