Johny Wilson Vs. State of Rajasthan - Court Judgment

Kishore Singh Lodha, J.

1. This is a bail application on behalf of Johny Wilson, who is standing trial for offence Under Section 376/511 IPC in the Court of the Addl. Chief Judicial Magistrate No. I, Jodhpur. He was on bail granted to him on 27-8-83. There after he absented himself on 14-2-84. The bail bonds were, therefore, forfeited. He surrendered before the court on 2-1-85 and again applied for bail. That application was rejected by the trial court and his application for bail was also thereafter rejected by the learned Sessions Judge, Jodhpur. The courts below found that earlier to 27-8-83 also the petitioner had remained absent from 24-8-77 to 4-8-83 and this time also he had absented himself for almost a year and the proceedings had been held up.

2. Learned counsel for the petitioner urges that since the petitioner had already been granted bail the forfeiture of the bonds does not amount to the cancellation of the bail already granted to him and the petitioner was entitled to be released on bail on his again furnishing personal and surety bonds in accordance with the original order dated 27-3-83 and the courts below were wrong in refusing him bail. In this connection he placed reliance upon a decision of a learned single Judge of this Court in Juman Khan v. State of Rajasthan 1983 RLR 382) which in its turn relied on another decision of a learned single Judge of this Court in Surendra Singh v. State of Rajasthan 1981 WLN (UC) 40. I am, however, unable to persuade myself to fall in line with these decisions. These decisions have relied upon Section 447 Cr.PC. and found that the Magistrate was empowered to demand a fresh security in accordance with the directions of the original order. Unfortunately, the provisions contained in Section 436(2) as also Section 446A which had been inserted by Act Number 63 of 80, had not been brought to the notice of the learned Judges who decided the aforesaid two cases. Section 436(2) reads as under:

(2) Not with standing anything contained in Sub-section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under Section 446.

3. This clearly goes to show that once the accused has incurred the liability of the forfeiture of the earlier bonds, he is not entitled to bail as a matter of right, even in bailable cases.

Section 446A reade as under:

446A. Cancellation of bond and bail bond:

Without prejudice to the provisions of Section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition

(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled, and

(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition ;

Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient.

4. A bare perusal of this section goes to show that the accused whose bonds have been forfeited cannot be released on his merely filing fresh bonds in accordance with the original order. He cannot be released on his own bonds if the Magistrate or the Police Officer finds that there was no sufficient cause for his failure to comply with the condition. He has to apply for fresh orders and the court may refuse him bail or direct his release on the execution of fresh personal bond and one or more sureties.

5. Section 447 Cr.PC has to be read along with the provisions of Section 446A. When so read, the only conclusion is that on the forfeiture of the earlier bonds the accused cannot ask for his release only on his furnishing personal and sureties bonds in accordance with the original order but he has to comply with the provision of Section 446A and that provision clearly gives a discretion to the court to refuse him bail or to grant him fresh bail on such terms and conditions as it deems proper. Therefore, the view taken by the learned Judes in the aforesaid two cases does not appear to be in consonance with the provisions of Sections 436(2) and 446A Cr.PC.

6. Since two different learnd Judges of this Court have taken the aforesaid view, it would not be proper for me sitting as a single Judge to depart from this view and, therefore, the only course open to me, keeping in view the propriety is, to refer this matter to a larger Bench,

7. The matter may be placed before Hon'ble the Chief Justice to constitute a larger Bench, at an early date, to set this controversy at rest.