- 1 - NC: 2025:KHC:765 CRL.A No. 636 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO. 636 OF 2020 BETWEEN: AUDRAM @ ADRAM, S/O HAMMABBA BEARY @ HAMMABBA, AGED ABOUT 50 YEARS, R/AT NO.2-134/1, MITHABAGILU, BELTHANGADY TALUK, D.K.-574 240. …APPELLANT (BY SRI KARUNAKARA P, ADVOCATE) AND: THE STATE BY MANGALORE ULLAL P S, REP. BY STATE PUBLIC PROSECUTOR, ATTACHED TO THE OFFICE OF ADVOCATE GENERAL, HIGH COURT, BANGALORE-560 001. …RESPONDENT (BY SRI CHANNAPPA ERAPPA, HCGP) THIS CRL.A. IS FILED U/S.449 CR.P.C TO SET ASIDE THE ORDER DATED 01.10.2019 PASSED BY I ADDL.DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE IN CRL.MISC.NO.1094/2018 THE BAIL BOND OF RS.50,000/- IS FORFEITED WARRANT AND SUMMONS WAS ISSUED. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:765 CRL.A No. 636 of 2020 CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Karunakara P., learned counsel for the appellant and Sri. Channappa Erappa, learned HCGP for the respondent-State. 2. Appeal by the surety challenging the validity of the order passed by the learned I Additional District Sessions Judge, Dakshina Kannada, Mangaluru in Crl.Misc.No.1094/2018 dismissing the application filed by the appellant under Section 446(3) of Cr.P.C. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: Present appellant stood as surety for accused No.5 namely Sri.Althaf in S.C.No.48/2015. Admittedly, accused No.5 jumped the bail and sufficient time was granted for the present appellant to secure the presence of accused No.5 by issuing necessary notice. Present appellant being the surety, was duty bound to secure the presence of accused No.5 in the sessions trial but he failed to do so. - 3 - NC: 2025:KHC:765 CRL.A No. 636 of 2020 4. Ultimately, the bond was forfeited and the present appellant filed an application under Section 446(3) of Cr.P.C. seeking for remission of the payment of bond amount. The same was opposed by the prosecution by contending that appellant stood as surety for accused No.5 voluntarily and did not discharge the responsibility of the surety as per the bond. 5. It was also brought to the notice of the Court that the present appellant stood as surety for accused No.6/Mohammed Iqbal in S.C.No.55/2016 and thereby, it was portrayed before the learned trial Judge that the accused is a professional surety. In other words, the trial Court took into consideration the attendant facts and circumstances of the case and in the absence of any explanation forthcoming in properly disclosing the fact that in how many cases the present appellant stood as surety and he has tried his level best to secure the presence of the accused No.5 in S.C.No.48/2015 and rejected the application filed under Section 446(3) of Cr.P.C. and whereby, he was directed to pay the entire bond amount in a sum of Rs.1,00,000/-. Being aggrieved by the same, the present appeal came to be filed. - 4 - NC: 2025:KHC:765 CRL.A No. 636 of 2020 6. Sri.Karunakara P., learned counsel for the appellant reiterating the grounds urged in the appeal memo, argued at length by contending that the trial Judge failed to consider the discretionary power vested in it under Section 446(3) of Cr.P.C. in exonerating the appellant to pay the bond amount or at least order for remission of the part of the bond amount and sought for allowing the appeal. 7. Alternatively, Sri.Karunakara P., learned counsel contended that in the event of this Court upholding the impugned order, Court may consider reducing the bond amount by exercising the power under Section 446(3) of Cr.P.C. which is available to this Court as well in the appellate jurisdiction and sought for allowing the appeal. In this regard, he filed a memo. Memo reads as under: "The undersigned upon instructions by the party to the trial court advocate seeking remission of bond amount considering the facts and circumstances of the case in the interest of justice and equity." 8. Per contra, Sri.Channappa Erappa, learned High Court Government Pleader for the respondent-State opposes - 5 - NC: 2025:KHC:765 CRL.A No. 636 of 2020 the appeal grounds by contending that the voluntary act of the appellant having not been discharged by the appellant in a proper manner, the surety bond became forfeited automatically by operation of law. Therefore, the question of exonerating the appellant in paying the bond amount would not arise at all. 9. He further contended to order for portion of the bond amount to be paid by passing an order of remission in respect of the balance amount, no grounds are made out by the appellant. Therefore, the alternate prayer cannot be granted by this Court. 10. In reply, Sri.Karunakara P., learned counsel for the appellant contended that appellant would have tried his level best to secure the presence of the accused No.5 but he was unsuccessful and ultimately, accused No.5 in S.C.No.48/2015 died on 22.10.2020 and therefore, taking note of these aspects of the matter, this Court may pass orders. 11. Having heard the learned counsel for the parties, following point would arise for consideration: Whether the appellant has made out a case for remission of the cost of the bond amount? - 6 - NC: 2025:KHC:765 CRL.A No. 636 of 2020 12. This Court has perused the material on record meticulously. Admittedly, it is the voluntary act of the appellant to stand as surety in respect of accused No.5 in S.C.No.48/2015. 13. The appellant failed to produce the order sheet in S.C.No.48/2015 as to how long the sessions case got adjourned and what are the efforts made by the prosecution to secure the presence of accused No.5 before the Court in S.C.No.48/2015. 14. Be what it may. Fact remains that after exhausting all remedy including the issue of non-bailable warrant, learned Sessions Judge has ultimately issued the show-cause notice to the surety, who is the appellant before this Court and ultimately passed the order by registering the case in Crl.Misc.No.1094/2018 in respect of the application filed by the surety under Section 446(3) of Cr.P.C. Prosecution placed on record about the conduct of the present appellant in not securing the presence of accused No.5 which has been discussed at length by the learned trial Judge in the impugned order. - 7 - NC: 2025:KHC:765 CRL.A No. 636 of 2020 15. In reasons paragraph No.3, learned trial Judge has discussed as to conduct of the appellant in not securing the presence of accused No.5. In the next paragraph, learned trial Judge has also noted that the very same appellant has stood as surety in S.C.No.55/2016 for accused No.3 and accused No.6- Mohammed Iqbal. 16. It is also noticed by the learned trial Judge that very same appellant has stood as surety in several other cases. It is also noted that the affidavit filed by the appellant did not disclose that he has stood for surety in S.C.No.48/2015 when he has filed the surety affidavit in subsequent cases. Therefore, the trial Court did not find any good reasons in ordering the remission of the bond amount. 17. Taking note of these aspects of the matter, this Court per se not inclined to interfere with the order of the trial Court. 18. Nevertheless since the accused No.5 is no more and he died on 22.10.2020 and order came to be passed on 01.10.2019, the sessions case would now proceeded as the case stood abated as against accused No.5, this Court is of the - 8 - NC: 2025:KHC:765 CRL.A No. 636 of 2020 opinion that the appellant if directed to pay 50% on the bond amount i.e., Rs.50,000/-, the ends of justice would be met. 19. It is also made clear that the appellant in future shall not indulge in similar activities and whenever he wants to stand as surety must disclose all necessary facts in his affidavit, failing which, he would expose himself for the necessary penal consequences. 20. In view of the forgoing discussion, following order is passed: ORDER Criminal Appeal is allowed-in-part. Appellant is directed to pay 50% of the bond amount i.e., a sum of Rs.50,000/- on or before 10.02.2025, failing which, necessary proceedings be initiated to recover the said amount as arrears of land value. Sd/- (V SRISHANANDA) JUDGE NR/- List No.: 1 Sl No.: 16