SYED CHUNNARSHAH SYED NADARSHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) A question, whether a person against whom proceedings for Prevention of Offences have boon started can be ordered to execute a bail bond for appearance in those proceedings or cannot be ordered, arises in this application, The question arises in the following circumstances. Proceedings under Section 110, Criminal Procedure Code, were initiated against the applicant before the Court of the City Magistrate, Nagpur, in the year 1967. A summons was issued against the applicant but was unserved, later on a warrant was issued and although it was not served on a couple of occasions, it was ultimately served. The applicant was, therefore, produced before the Court and was asked to execute a bond in a sum of Rs. 3,000 with a surety of like amount for appearance on the dates of hearing during the course of the proceedings. On one or two occasions he appeared but was absent later on. Therefore, a non -bailable warrant was issued against him. It was unserved. The bond, which he had executed for appearance, was then forfeited because the applicant did not appear on the dates of hearing. An enquiry as usual was started against his surety. It turned out that the bond was executed by a bogus surety. The applicant was attempted to be traced but could not be traced. It appears that the applicant was arrested for some other offence and was thereafter produced in these proceedings on May 6, 1969. On that day ho was asked to show cause why he should not be ordered to pay the amount of bond which he had already executed in a sum of Rs. 3,000. Ho had no explanations to offer.

(2.) THEN , during the course of the proceedings, the applicant made an application on May 29, 1969 that no action against him was deemed necessary under Section 117 read with Section 112, Criminal Procedure Code, because there was no case against him under Section 110, Criminal Procedure Code. According to his application, he could not be detained because no action had boon taken against him under Section 117 read with Section 112 of the Criminal Procedure Code. At best, the Court, according to him, could have directed him to execute a bond under Section 117 read with Section 112, Criminal Procedure Code, that therefore no bond for appearance in Court could be taken under the law. The learned Magistrate passed an order on this application that the applicant had absconded; that with great difficulty he was arrested; that his bond for appearance had been forfeited and that an action for recovery of the amount of bond is also in progress. He, therefore, ordered that he shall be released on bail if he deposits a sum of Rs. 3,000 in cash in Court. That order was challenged before the Additional Sessions Judge, Nagpur. The learned Additional Sessions Judge relied on Emperor v. Karbalai and on The State v. Santokh Singh A.I.R. [1960] Punj. 31 and decided that the order was quite legal and proper. This order, therefore, m challenged here now. The only point that arises here for consideration is to see whether this order is legal and proper.

(3.) THE learned advocate for the applicant invites my attention to Sections 353, 488 and 496, Criminal Procedure Code, and contends that these provisions show that whenever the Legislature wanted the presence of the accused in a proceeding, they have provided for the same and that Chapter VIII of the Criminal Procedure Code, which is complete in itself, does not provide for the presence of the accused against whom the proceedings for Prevention of Offences have been initiated. It is further argued that Section 110 in Chapter VIII only provides for detention and, therefore, the accused need not be present in the proceedings. Now, it is true that under Section 488(6), all evidence under Chapter XXXVI, which deals with the maintenance of wives and children, shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed. with, in the presence of his pleader. It is also true that under Section 853, Criminal Procedure Code 'except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleador.' According to the learned advocate for the applicant, therefore, when Section 496, Criminal Procedure Code provides for bail for persons other than a person accused of a non -bailable offence, the intention is. to divide the persons who are entitled to be bailed out into two categories viz., persons who are accused of a non -bailable offence and persons who are accused of bailable offence. No other category, according to the learned advocate for the applicant, is included in Section 406, Criminal Procedure Code. Now, let us see the intention of the Legislature by the language used in Section 490, Criminal Procedure Code.