SHYAM SUNDER SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition under Section 482, Cr.PC has been preferred for expunging the remarks passed by the Judicial Magistrate I -Class Newai, in his order dated 22nd July, 1987, against Shyam Sunder Sharma, Advocate.

(2.) BADRI was facing trial in the court of the Judicial Magistrate, Newai, and was on bail Be did not appear in court on 26th and 28th Feb, 1986, and so a warrant of arrest and a notice for forfeiture of the surety and personal bonds, were issued by the Court. When he appeared before the court, on warrant of arrest, he requested the court to release him on bail, and he also gave reasons for his remaining absent on those dates. That application was dismissed Thereafter, the learned Counsel for the accused cited the case of Jumma Khan (1983 RLR 382), and on the basis of that ruling, he prayed that the accused be ordered to be released on bail. The learned Magistrate perused the case of Jumma Khan (supra) and also that of Johny Wilson (1986 RLR 308). The case of Johny Wilson is a decision of a Division Bench of this High Court, which was delivered by way of a reference made by Justice K.S. Lodha. There are two decisions on this point, one of Jumma Khan (supra) and the other is of Surendra Singh v. State (1981 WLN (UC) 40). In view of these two contradictory decisions, Justice K.S. Lodha had referred the case of Johny Wilson (supra) to a Larger Bench and the point was decided by a Division bench of this Court. The said Division Bench has discussed both the judgments and it has been observed that when a bond for appearance in a case of a person is forfeited for breach of condition his bonds and the surety bonds shall stand cancelled and such person will not be entitled as a right to be released on bail upon execution of fresh personal and surety bond and that it would be in the discretion of the court whether to release him or not upon execution of fresh personal and surety bonds, and further that in case, the court releases him, fresh surety may be demanded from him, in accordance with the directions of the original order, or the court may order for higher amount.

(3.) IN Jumma Khan's case, it was observed that the Magistrate has to proceed only under Section 447. Cr.PC and order furnishing fresh surety, and on that basis, the learned Magistrate has no power to refuse bail.