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2003 DIGILAW 157 (KAR)

K. S. SHIVANNA v. STATE OF KARNATAKA

2003-02-17

S.R.BANNURMATH

body2003
S. R. BANNURMATH, J. ( 1 ) HEARD the learned Counsel for the appellant. The appellant has challenged the order dated 29-11-2002 passed by the trial Court directing the appellant-surety to deposit a sum of Rs. 5,000/- in Court as penalty in default to issue FLW through the Superintendent of Police, Tumkur. ( 2 ) THE appellant stood surety for an accused charge-sheeted for the offence under Sections 376, 511 and 377, IPC, and has executed a personal bond for release of the accused on bail with guarantee that he will be appearing before the Court on the next dates without fail for a sum of Rs. 10,000/ -. It is seen that after releasing the accused on bail right from 8-5-2000, the accused has remained absconding and not available for the prosecution or trial in spite of taking coercive steps of issuing Non Bailable Warrant. As such the trial Court had to issue notice to the surety, who on appearance undertook to produce the accused but again in spite of giving sufficient time and opportunity, did not produce the accused before the Court. Hence, the Court was left with no other option but no forfeit the bail bond and the appellant/surety was called upon to pay the bond amount as penalty. But the surety also filed an application under Section 446 (3), Cr. P. C. , before the Court to remit some portion of the penalty amount and to enforce the payment in part only. Considering the facts and circumstances, the trial Court reduced the penalty practically to half of the personal bond executed by the appellant. Even this amount is now sought for modification by the surety in the present appeal. ( 3 ) RELYING upon the pronouncement of this Court in the case of K. Raffuddin Ahmed v. State of Mysore, 1973 Mys LJ 36 : (1973 Cri LJ 891), it is contended that the determination of such penalty by a Court of law must be on the basis of the application of the mind and the exercise of judicial discretion and that the quantum of penalty to be levied must bear some correlation to the circumstances present in the case. It is also submitted that the appellant is suffering from heart ailment and in spite of his best efforts, he is unable to produce the accused before the Court. It is also submitted that the appellant is suffering from heart ailment and in spite of his best efforts, he is unable to produce the accused before the Court. ( 4 ) THERE is no dispute as to the pronouncement in the Ruffuddin Ahmed's case but what is relevant to be noted is that even in that decision this Court has held that the quantum of penalty to be levied must be proportionate or go reliable to the circumstances present in the case including the long continued absence of the accused, nature of offences with which he is charged and the likelihood of the State being put to further exertion and expense in apprehending the accused. The poverty or the ability of the surety to pay the sum, may in some circumstances be a relevant fact. ( 5 ) IT is to be noticed that it has become a common phenomenon of offering surety to an accused even in heinous crime and because of such offering of surety and granting bail, large number of accused thereafter remain unavailable for the trial thereby prolonging the trial period also. Further State machinery itself is put to great pressure, expense, etc. , in once again trying to locate or find out whereabouts of the accused so released on bail. The object of taking surety is for the purpose of ensuring of availability of an accused before the Court by the surety whenever the dates of trial are fixed. As such it is his look out as he has solemnly undertaken before the Court to keep the accused present. If such an undertaking is broken the law itself provides for taking stringent steps against the surety as if he is instrumental in allowing the accused to abscond. Keeping in mind the statistics of large extent of accused being unavailable, once they are let on bail and thereafter sureties throwing their hands up saying that in spite of best efforts accused is not available to him, would in my view, result in continued absence of the accused or unavailability for the trial and as such the Courts below ought to take stringent actions practically mercilessly in this regard. ( 6 ) IN the present case the trial Court has in fact considered the plea of the appellant under Section 446 (3), Cr. P. C. and in fact has reduced the penalty from Rs. ( 6 ) IN the present case the trial Court has in fact considered the plea of the appellant under Section 446 (3), Cr. P. C. and in fact has reduced the penalty from Rs. 10,000/- (the personal bond executed by the surety) to Rs. 5,000/ -. There is absolutely no material to see that whether in fact the appellant suffers from any heart ailment. Neither such material has been produced before the trial Court nor even before this Court to substantiate the same. In the absence of such material, in my view, the impugned order of the trial Court awarding the penalty of Rs. 5,000/- for the negligence of the appellant and thereby permitted the accused of serious crime like offence under Sections 376, 377, IPC, appears to be just proper and needs no interference. Appeal is devoid of merits and hence the same is rejected. Appeal dismissed. --- *** --- .