SK YOUNUS Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this application u/S. 482, Cr. P.C. petitioner prays to set aside the order of the learned S. D. J. M., Bhubaneswar dated 1-5-2000 passed in G. R. Case No. 3401 of 1999.

(2.) The undisputed relevant factual position is that petitioner is an accused in the said G. H. Case on the allegation of committing the offences punishable u/S. 454/506/34, I.P.C. On 7-12-1999 learned IInd Additional Sessions Judge, Khurda passed order in Criminal Misc. Case No. 178/951 of 1999, an application u/S. 439, Cr. P.C. allowing the petitioner to go on bail on furnishing cash security of Rs. 10,000/- (Rupees ten thousand). The conditions were imposed in that order for bail which included the condition of personal appearance of the petitioner in the Court of S. D. J. M. on each date and failure to appear was to result in cancellation of the bail. On the basis of that order on 8-12-1999 petitioner was released on bail from the Court of the S.D.J.M. On 13-12-1999 petitioner did not appear in person and an application u/S. 317, Cr. P.C. was filed by his counsel on the ground of illness. In view of the directions relating to personal appearance in the order of bail passed by learned Additional Sessions Judge, learned S.D.J.M. rejected the application u/S. 317, Cr. P. C. and forfeited the cash security and issued non-bailable warrant of arrest against the petitioner. As against that order petitioner approached this Court in an application u/S. 439(1)(b), Cr. P. C. which was registered as Criminal Misc. Case No. 125 of 2000. In that application petitioner prayed to modify the order of the Additional Sessions Judge relating to the cash security and also prayed to set aside the order of the S.D.J.M. dated 13-12-1999 which related to forfeiture of the cash security and issue of N.B.W.A. That application was heard and disposed of on 13-1-2000. Learned Judge of this Court disposed of that application by allowing the petitioners to go on bail on furnishing bail bond of Rs. 10,000/- (Rupees ten thousand) with one surety for the like amount to the satisfaction of the learned S.D.J.M., Bhubaneswar and observed that regarding forfeiture of the cash security petitioner may approach the appropriate forum, if so advised, u/S. 449, Cr. P.C. Notwithstanding that order, petitioners filed another application u/S. 482, Cr. P.C. on 16-2-2000 and has stated by the learned counsel for the petitioner, recourse u/S. 449, Cr. P.C. was not availed by the petitioner. That application u/S. 482, Cr. P.C. was registered as Criminal Misc. Case No. 892 of 2000. That application was heard and disposed of on 24-3-2000. Hon'ble Judge considering that application, mentioned in that order that the S.D.J.M. was not at fault in passing the order dated 13-12-1999 in-asmuch as he complied to the conditions imposed by the learned Additional Sessions Judge. At the same time the Hon'ble Judge considering the plea of illness, held that there should be humanitarian consideration in favour of the petitioner for his default in his personal appearance and on that ground the order dated 13-12-1999 of the S.D.J.M. was set aside and the petitioner was directed to appear in person before the trial Court. On a perusal of that order it appears that no reference was made to the order in Criminal Misc. Case No. 125 of 2000.

(3.) After disposal of the Criminal Misc. Case No. 892 of 2000 petitioner applied in the Court of S.D.J.M. for refund of the cash security which he had deposited on the ground that he is on bail as per the terms and conditions fixed in Criminal Misc. Case No. 125 of 2000 and the order relating to forfeiture of cash security has been set aside as per the order in Criminal Misc. Case No. 892 of 2000. Learned S.D.J.M. after hearing the parties, rejected that application on the grounds that the order passed in Criminal Misc. Case No. 892 of 2000 resulted in setting aside the order dated 13-12-1999 and thereby the order of cancelling the bail and forfeiting the cash security being set aside, the bail order of the Additional Sessions Judge again became operative and in the absence of modification of that order the cash security cannot be refunded.