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2003 DIGILAW 850 (PNJ)

Phuman Singh v. State Of Punjab

2003-05-30

S.S.SARON

body2003
Judgment S. S. Saron, J. 1. This petition under Sec.401 of the Code of Criminal Procedure (Cr. P. C. for short), has been filed against the order dated 28/4/1993, passed by the learned Sessions Judge, Hoshiarpur, whereby, the petitioner has been imposed a penalty of Rs.4,000.00 in proceedings under Sec.446 Cr. P. C. on account of his failure to produce the accused in Court of the trial Magistrate. 2. Case titled Harpreet Singh alias Gulla V/s. State, was pending in the Court of learned Judicial Magistrate II Class, Hoshiarpur, in pursuance of First Information Report No.79 dated 29/11/199 1, for the offence under Sec.379 of the Indian Penal Code registered at Police Station, City Hoshiarpur. The petitioner stood surety for the accused. The accused absconded from the proceedings and, therefore, notice was issued to the petitioner being the surety on 27/2/1992. The petitioner took time to produce the accused. However, despite repeated opportunities, he was unable to produce him in Court. He himself did not turn up on many dates. Thereafter, non-ailable warrants against the accused were issued and the petitioner was also summoned for 4/9/1992 by the trial Magistrate vide his order 4/8/1992. He did not turn up and again notices were issued. Ultimately, the petitioner appeared in Court on 17/12/1992 and requested for 15 days time for filing his reply. Besides he undertook to produce the accused in Court. Time was allowed on his furnishing personal bond to the tune of Rs.5,000.00 and he was directed to produce the accused on or before 2/1/1993. On his request, Dasti warrants were also given against the accused for executing the same on the accused. Thereafter, the warrants remind unexecuted. Then another date was given to the surety for producing the accused on Court. However, he was not produced. Accordingly, the learned trial Magistrate vide his order dated 25/1/1993, keeping in view the facts and circumstances that the petitioner is an aged person and despite notice given to him he could not produce the accused, he was imposed a penalty of Rs.4,000.00 and he was directed to deposit the penalty amount on or before 1/2/1993 and also produce the accused before the said date. 3. Against the aforesaid order dated 25/1/1993, the petitioner filed an appeal before the learned Sessions Judge, Hoshiarpur in which apart from pleading that the procedure prescribed under Sec.446 Cr. 3. Against the aforesaid order dated 25/1/1993, the petitioner filed an appeal before the learned Sessions Judge, Hoshiarpur in which apart from pleading that the procedure prescribed under Sec.446 Cr. P. C. had not been followed, he also stated that the petitioner was aged 65 years and had made sincere efforts for producing the accused. Besides, the amount of penalty imposed was disproportionate to the offence involved as the accused was facing trial for the theft of two tyres only. The learned Sessions Judge, Hoshiarpur, vide his order dated 24/8/1993 dismissed the appeal and he found no case to be made out warranting interference by him. Hence the present revision against the said order dated 24/8/1993. 4. I have heard Ms. Saloni Sharma, Advocate, for the petitioner and Shri J. P. Bhatt, learned Assistant Advocate General, Punjab, for the respondent. 5. After arguing the case for sometime the only contention urged by the learned counsel for the petitioner is that the penalty imposed is disproportionate to the oflence. She further contended that the offence involved is of theft of old tyres and that had more opportunities been given to the petitioner, he would have produced the accused. The learned counsel for the respondent State, however, contends that the petitioner despite standing surety has failed to produce the accused in court and, therefore, the orders passed by the Courts below are just and reasonable. 6. Section 446 Cr. P. C. provides for the procedure, when bonds have been forfeited. It is not the case of the petitioner in this Court that the procedure has not been followed. It is only contended that the penalty imposed is disproportionate keeping in view the nature of offence attributed to the accused. I am of the view that for a fair trial, it is one of the most essential elements that the attendance of the accused is insured in Court whenever required. It is all the more necessary so as to complete the trial keeping in view the pendency of litigations in Courts. It is only when the accused are brought to the Court for trial expeditious disposal of the case can be done. The role of the surety is to ensure the presence of the accused whenever required. It is for this purpose that surety is given and Court accepts it. It is only when the accused are brought to the Court for trial expeditious disposal of the case can be done. The role of the surety is to ensure the presence of the accused whenever required. It is for this purpose that surety is given and Court accepts it. Until the surety bond is discharged he is bound by the bond and in the absence of the accused appearing in Court, the surety cannot absolve himself from his liability. In a proceeding under Sec.446 Cr. P. C. if there is forfeiture of the bond executed by the surety due to default of the accused in making appearance before the Court, it is open to the Court concerned to take steps in accordance with Sec.446 Cr. P. C. against the surety as also the accused. Form No.45 in the second Schedule of the Cr. P. C. provides the bond and bail bond to be executed by the accused as also the surety for the attendance of the accused before the Officer Incharge of the policestation or the Court. The surety bonds himself to forfeit to the Government the amount for which he stood surety in accordance with the bond furnished by him. In the event of forfeiture of bond for failure to produce the accused the Court can impose penalty. However, in so far as remission of the penalty is concerned, that is the discretion of the Court to grant remission for which necessary provision is provided for in terms of Sec.446 (3) Cr. P. C. 7. Keeping in view the facts and circumstances of the case that the petitioner is an aged person and the accused has been attributed a theft of only two tyres. I feel that the offence is of trivial nature only. Therefore, the ends of Justice would be met in case the penalty of Rs.4,000.00 imposed upon the petitioner is reduced to that of Rs.1,000.00 . 8. In view of the above, the revision petition is partly allowed and the penalty imposed on the petitioner is reduced to Rs.1,000.00 . This Court while admitting the revision on 28/5/1993 had stayed the recovery of the amount of penalty imposed upon the petitioner. The petitioner shall now deposit the penalty amount of Rs.1,000.00 . Revision allowed partly.