JOHNY WILSON Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This bail application has come up for hearing before us on the orders of Hon'ble the Chief Justice on reference having been made by Shri K. S. Lodha, J., as he found himself unable to fall in line with the two decisions of this Court in Jumma Khan v. State of Rajasthan, 1983 Rajasthan LR 382 decided by Shri G. K. Sharma, J. (one of us) and Surendrasingh v. State of Rajasthan, 1981 W.L.N. (UC) 40 decided by Shri N. M. Kasliwal, J.

(2.) We may state the few relevant facts. The applicant Johny Wilson was challaned in the court of Additional Chief Judicial Magistrate, No. 1, Jodhpur on Aug. 20, 1977 after investigation. 24-8-1977 was fixed for scrutiny of challan. But on that date, the accused absented and jumped bail and continued to remain absconding up to 4-8-83 i.e. for about 6 years. Thereafter, on arrest, he was produced by the police on 5-8-83. He was released by the order of the Sessions Judge, Jodhpur on 27-8-83. The accused again absented on 14-2-84 and continued to abscond till 2-1-85, on which date, he himself surrendered before the court and submitted an application for bail, which was rejected and he was sent to the judicial custody. Thereafter, an application was moved before the learned Sessions Judge, Jodhpur, who by his order dated Jan. 15, 1985 rejected the bail application looking to the conduct of the accused-applicant that he had absconded twice for a considerable period and the learned Sessions Judge also considered that it would not be proper to enlarge the accused on bail as it is likely that he may abscond and thereby the trial of the case may be protracted. Thereupon, the accused has moved this bail application under Sec. 439, Cr. P.C.

(3.) On behalf of the applicant, it was contended before Shri K. S. Lodha, J. that the applicant 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 applicant is entitled to be released on bail on his again furnishing personal and surety bonds in accordance with the direction of the original order dated 27-8-83 under Sec. 447, Cr. P.C., The courts-below were wrong in refusing bail to him. In support of his contention, reliance was placed on the aforesaid two decisions. The learned Judge expressed his inability to agree with the said two decisions and observed that the two decisions are based on Sec. 447, Cr. P.C. and it has been found that the Magistrate was empowered to demand a fresh surety bonds in accordance with the directions of the original order. However, the learned Judge observed that unfortunately, the provisions contained in Sec. 436(2) as also Sec. 446A, which had been inserted by Act No. 63 of 1980, had not been brought to the notice of the learned Judges and he concluded that the view taken by the learned Judges in the aforesaid two cases, does not appear to be in consonance with the provisions of Ss. 436(2) and 446 A, Cr. P.C. It is in these circumstances, this application has come up for consideration before us.