[2026:RJ-JP:27832] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 4522/2026 URN: CRLMP / 10345U / 2026 Manish Sharma Son of Shri Amarnath Sharma, For Weavetax Fashions, Office At Plot No. G-1-550, Sitapura Industrial Area, Tonk Road, Jaipur, Resident Of Sharma Villa, B-254, Hari Marg, Near Kardhani Shopping Center, Malviya Nagar, Jaipur (Rajasthan) ----Petitioner Versus Suraj Sharma Son of Shri Moolchand Sharma, For Suraj Export Fabrics, Resident Of Behind Chaturbhuj Ji Ka Temple, Dhabhai Ji Khurra, Ramganj Bazar, Jaipur (Raj.). ----Respondent For Petitioner(s) : Ms. Nisha Swami For Respondent(s) : HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 20/07/2026 1. The present Criminal Misc. Petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been preferred by the petitioner challenging the order dated 07.07.2026 passed by the learned Special Judicial Magistrate N.I. Act Cases No.11, Jaipur Metropolitan-II (Raj.) in Criminal Case No.866/2017 whereby the learned Magistrate dismissed the application filed by the petitioner under Sections 70(2) & 446 of Cr.PC and further challenged the order dated 28.04.2026 whereby learned Magistrate forfeited petitioner’s bail bonds and issued arrest warrant. [2026:RJ-JP:27832] (2 of 8) [CRLMP-4522/2026] 2. Learned counsel for the petitioner submits that the petitioner could not appear before the learned trial Court on 28.04.2026 due to unavoidable circumstances. It is submitted that the petitioner was himself suffering from a serious medical condition and at the same time, his mother was on ventilator support rendering him unable to attend the proceedings. It is further submitted that the petitioner is facing trial for an offence punishable under Section 138 of the NI Act and owing to the aforesaid circumstances, the petitioner remained absent and consequently, the learned trial Court forfeited his bail bonds and issued a warrant of arrest against him. 3. Counsel submits that the petitioner thereafter filed an application on 07.05.2026 for setting aside of the order dated 28.04.2026 and recall of the non-bailable warrant issued under Section 70(2) of Cr.P.C. and remission of the penalty under Section 446(3) of the Cr.P.C, however, the said application was dismissed by the learned trial Court vide order dated 07.07.2026 on the ground that it had no power to review its own order. 4. Learned counsel for the petitioner submits that the impugned order dated 28.04.2026 was passed ex parte and is in violation of the principles of natural justice, as no opportunity of hearing was afforded to the petitioner before forfeiting his bail bonds and issuing the warrant of arrest. Counsel further submits that the learned trial Court committed a jurisdictional error while passing the impugned order dated 07.07.2026 by holding that it had no power to entertain the petitioner's application on the premise that the same would amount to a review of its earlier order. It is submitted that it is well settled in law that an order issuing a [2026:RJ-JP:27832] (3 of 8) [CRLMP-4522/2026] warrant of arrest is interlocutory in nature and can be recalled by the Court in exercise of its powers under Section 70(2) of the Code of Criminal Procedure. Counsel further submits that the petitioner is ready and willing to deposit the penalty imposed under Section 446 of the Cr.P.C, therefore, the impugned orders be set aside and the present petition be allowed. 5. At this juncture, it is apposite for this Court to refer to the judgment of Mohammad Haras Vs. State of Punjab, CRM-M No.31385/2023, decided on 07.07.2023, wherein it was observed as under:- "6. No doubt, learned trial Court has got discretion to cancel the bail, however, it is well settled that before passing such an order, Court is required to issue notice to the accused so as to afford him an opportunity to explain as to why the bail should not be cancelled. Such course has not been adopted by learned Judge, Special Court, Sangrur in the instant case. On this ground alone, impugned order to the extent of cancellation of bail deserves to be set aside. 7. Moreover, cancellation of bail is a serious matter and can have significant impact on the life of a person. Matters of personal liberty ought not to be taken so lightly and in such mechanical manner as in the case herein. 8. In the premise, impugned order is set aside. Earlier bail order stands revived on bail bond and surety bond already furnished by petitioner before learned trial Court. Petitioner is directed to join proceedings before learned trial Court within three weeks from today and shall continue to appear before learned trial Court without default." 6. Furthermore, with regards to the directions issued by the learned trial Court to proceed against the sureties under Section 446 Cr.P.C., the same is also a serious procedural fallacy committed by the learned trial Magistrate and cannot be [2026:RJ-JP:27832] (4 of 8) [CRLMP-4522/2026] sustained. On this point as well, guidelines enunciated in a judgment titled Varinder Singh Vs. State of Punjab, 2023:PHHC:104379, passed by Punjab & Haryana High Court are relevant and the same are reproduced hereinbelow:- "9. In the light of the statutory provisions of Sections 444 and 446 of the Code and the observations recorded above, I am of the opinion that the following procedure and principles governing the discharge of a surety and, when necessary, the forfeiture of the bond and the further steps to be taken for imposing the penalty upon the surety need to be kept in mind by the courts: A. DISCHARGE OF SURETY A.1. Surety can seek discharge at any stage: An individual who has stood surety for someone released on bail has the right to apply to the Court to be discharged from his responsibilities. He can seek a complete discharge from the bond. A.2. Warrant of Arrest for accused: Upon receiving the application from the surety, the Court will issue a warrant of arrest for the person concerned who was released on bail to be produced before the Court. A.3. Appearance of the bailed person: Once the person concerned is brought before the Court through the warrant of arrest or otherwise appears, the Court shall direct the surety bond to be discharged. A.4. Finding New Sureties: Once the Court orders the discharge of the bond for the surety, the person who was released on bail will be required to find other sufficient surety. A.5. Consequences of Failure: If the person who was released on bail fails to find other sufficient surety as required, the Court may commit him to jail. B. FORFEITING THE SURETY BOND AND IMPOSING PENALTY B.1. Forfeiture of bond and proof: If a bond is executed for the appearance of an individual before a court or for the production of property and it is proven to the satisfaction of the court that the bond has been forfeited, the court must record the grounds for such proof. Similarly, if a bond is forfeited in any other [2026:RJ-JP:27832] (5 of 8) [CRLMP-4522/2026] context, the court must also record the grounds for forfeiture. B.2. Notice and penalty: The court may then call upon the person who is bound by the bond (surety) to either pay the penalty specified in the bond or to show cause why the penalty should not be paid. If sufficient cause is not shown and the penalty is not paid, the court can take action to impose the penalty. B.3. Discretionary Remission: The court has the discretion to remit (reduce) a portion of the penalty and enforce payment only for the remaining amount, implying that forfeiture of the bond by itself does not amount to imposition of the penalty and a specific order has to be passed for imposing the penalty. B.4. Civil imprisonment in default of payment of penalty: If the penalty imposed is not paid or cannot be recovered, the surety may be liable for imprisonment in a civil jail for a period up to six months. B.5. Surety's death: If a surety to a bond dies before the bond is forfeited, his estate is relieved of any liability related to the bond. B.6. Use of Conviction as evidence: If a person who has provided security under Section 106 or Section 117 or Section 360 of the Code is convicted of an offence, the commission of which constitutes a breach of the conditions of his bond or of a bond executed in lieu of his bond under Section 448 of the Code (for a minor), a certified copy of the court's judgment can be used as evidence against the surety. The court will presume that the offence was committed by the same person unless evidence to the contrary is provided."s 7. In light of the aforesaid, this Court is of the view that the impugned order directing the forfeiture of the bail bonds of the petitioner-accused and initiating proceedings against his surety under Section 446 Cr.P.C. is hereby set aside. 8. Moreso, counsel for the petitioner submits that the learned trial Court has acted with extreme procedural harshness by refusing the alternative prayer of the petitioner for permanent exemption from personal appearance, stating thereby that the [2026:RJ-JP:27832] (6 of 8) [CRLMP-4522/2026] reasons assigned for his absence did not seem to be genuine. However, this Court is of the view that presence of an accused particularly in a matter of the kind in hand, where proceedings are semi-criminal/civil in nature, should ordinarily not be insisted upon, if an application is moved for a particular hearing, unless the trial court needs to either examine the under-trial or his statement is to be otherwise recorded for proceeding further in the matter. 9. In this regard, reference may be made to the judgment of Arun Solanki Vs. State, S.B. Criminal Misc. Petition No.4880/2024, dated 26.07.2024, wherein it was observed as under:- "9. The learned trial court’s decision thus reflects a misapplication of judicial discretion. The discretionary power of a court must be exercised judiciously and with due consideration of the circumstances. In this case, the absence of any conduct warranting such stringent conditions by the petitioner indicates an arbitrary use of discretion, thereby necessitating correction." 10. The conditions imposed go beyond the scope of what is necessary to secure the attendance of the accused, as outlined in relevant procedural laws. The trial court’s decision appears to contravene established principles under Sections 205 [corresponding with Section 228 of the BNSS] and 317 [corresponding with Section 355 of the BNSS] of the Code of Criminal Procedure, which allow for exemptions from personal appearance without onerous conditions when justified by the circumstances. 11. The learned trial court, therefore, should have exercised caution before imposing costs on the petitioner. The imposition of costs appears arbitrary, as the matter was neither scheduled for recording the petitioner’s statement nor did the petitioner in any way contribute to the delay in the trial, which was fixed for prosecution evidence. In fact, since the prosecution witnesses were not present on the scheduled day, the trial court issued bailable warrants against the said witnesses. The [2026:RJ-JP:27832] (7 of 8) [CRLMP-4522/2026] petitioner, on the other hand, took all necessary precautions to ensure that he neither showed any disrespect to the court nor caused any delay in the proceedings and, accordingly, instructed his counsel to file an application seeking exe mption from personal appearance in accordance with law. 12. It is undeniable that attending court proceedings requires a person to take time off work, potentially leading to a loss of livelihood. The petitioner’s counsel rightly asserts that the petitioner is barely able to earn his livelihood, and being present in court means forfeiting his daily wage, which in turn causes his entire family to suffer the consequential penury and hunger. 13. Being unmindful of the above, the learned trial court, without providing any justification for imposing costs on the petitioner, though allowing the exemption application, required the petitioner’s parents to file an affidavit, in addition to directing the petitioner to remain present at every hearing, regardless of whether his presence was necessary. 14. The impugned order is thus clearly arbitrary and must be set aside. It is so ordered. 15. In parting, I may hasten to add that the presence of an under-trial is not to satisfy the ego of the court but to ensure that he can safeguard his interests during the trial, and that his absence should not prejudice his case or jeopardize his right to a fair trial. Imposing such irrational conditions in a rigid manner, even when the accused’s presence is not required, is completely unwarranted. An under-trial/accused’s personal presence should not be insisted upon when it is not necessary for the progress of the trial. 16. It is also made clear that any future application for exemption filed by the petitioner shall be dealt with in accordance with law. He is not required to be present at every hearing unless it is explicitly made necessary by the trial court." 10. Upshot to the above discussion, the instant petition is allowed and the impugned orders dated 28.04.2026 and 07.07.2026 are hereby set aside. The original bail bonds of the petitioner-accused as well as bonds of his sureties are restored [2026:RJ-JP:27832] (8 of 8) [CRLMP-4522/2026] subject to payment of Rs. 7,000/-, as cost, to be paid to the complainant on or before 31.07.2026. Trial to proceed further, in accordance with law. 11. Since the petitioner is presently unwell, he may file appropriate application before the trial Court seeking exemption of his personal appearance by citing appropriate reasons. If any such application is filed by the petitioner, the same shall be considered by learned trial Court sympathetically. 12. Pending application(s), if any, also stand disposed of. (ANIL KUMAR UPMAN),J 190/LALIT MOHAN