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Madhya Pradesh High Court · body

2001 DIGILAW 900 (MP)

Chuniya v. State of M. P.

2001-12-03

S.L.KOCHAR

body2001
JUDGMENT The appellant has preferred this appeal under S. 449 of the Code of Criminal Procedure against the order dated 1.8.1998 passed by the' learned IInd Additional Sessions Judge, Neemuch in M.Cr.Case No. 64/98, whereby forfeited the surety amount and also ordered for recovery of Rs. 10,000/- the whole surety bond. The contention of the appellant is that he stood surety for accused Shambhoohil in Sessions Trial No. 126/98 for offences u/Ss. 307/34 of the Indian Penal Code. The said accused Shambhoolal absented on 21.7.1998. On his behalf an application for exemption from personal appearance was filed by his Advocate but the same prayer was turned down and the learned trial Court ordered issuance of non-bailable warrant and also issued Show Cause Notice for recovery of the amount of the bailbond. The day fixed for reply was 1.8.1998. It is further submitted by the appellant that on 31.7.1998 he himself had taken the accused Shambhoolal to the police station and on 1.8.1998 the appellant was produced before the Court by the Police. It appears from the memo of appeal that there was one more accused Kanwarlah who had already expired prior to 1.8.1998. On 1.8.1998 the surety along with his counsel appeared before the trial Court and submitted his reply. Accordingly to him the appellant could not appear on 21.7.1998 because of his sickness and an application to this effect was filed by his counsel, seeking exemption, but the same was not accepted. After knowing the fact of issuance of warrant of arrest and notice for recovery of the surety bond amount, the appellant/surety himself took the accused on 31.7.1998 at the police station. The reply of the surety was not accepted by the learned trial Court mainly on the ground that the arrest memo of the accused Shambhoolal was revealing the fact that he was arrested in village Sawan. The learned trial Court has held that the false statement was given by the surety about surrender of accused Shambhoolal by him in the police station. The surety has also submitted that he was an old and poor person and unable to deposit the surety amount Having heard the learned counsel for the appellant and the Panel Lawyer for the State, this Court is of the opinion that the order for recovery of the full surety bond amount of Rs. 10,000/- is very harsh. The surety has also submitted that he was an old and poor person and unable to deposit the surety amount Having heard the learned counsel for the appellant and the Panel Lawyer for the State, this Court is of the opinion that the order for recovery of the full surety bond amount of Rs. 10,000/- is very harsh. The impugned order dated 1.8.1998 and the memo of appeal filed by the learned counsel for the appellant disclose the fact that the appellant remained absent only on 21.7.1998. On that date his application for exemption from personal appearance was filed by his counsel but the same was rejected. This Court is not able to know from the record as to why and on what ground the exemption application was rejected. Be that as it may, the fact remains that on 21.7.1998 the appellant was represented through his counsel. Thereafter, on a given date for showing cause i.e. on 1.8.1998, he again appeared and filed the reply. He had not only filed the reply but also produced the third accused before the Court and prayed for discharge. Thus, the appeal is partly allowed. The appellant is directed to deposit Rs. 1,500/- before the trial Court, within a period of one month from today, failing which the trial Court will take necessary steps for its recovery. Certified copy of this judgment be given within three days from today on payment of necessary charges.