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2005 DIGILAW 146 (MP)

Mangilal v. State of M. P.

2005-01-31

S.L.KOCHAR

body2005
JUDGMENT This appeal, has been filed by the appellant against order dated 2.11.2004 passed by Special Judge (NDPS Act) Mandsaur in Special Case No. 01/04 thereby not exonerating the appellant from depositing the remaining amount of surety bond as penalty i.e. Rs. 16,000/-. The facts of the case, in brief, are that the appellant stood surety in Special Criminal Case No. 67/02 for accused Pappanla1. The accused Pappanlal did not appear on the date of hearing before the trial Court, therefore, warrant of arrest was issued against him. The appellant was confined in Jail in some other case and when was being taken to Jaora for attending the case, he absconded from the police custody. Therefore, trial Court issued warrant of arrest against accused Pappanlal and notice to show cause, to the appellant. The appellant was not able to furnish proper reply and was unable to show sufficient cause. Therefore, by order dated 30.1.2004 trial Court ordered for the recovery of Rs. 20,000/- an amount of surety as a penalty. The appellant did not deposit the said amount. Therefore, trial Court sent him to Civil Jail. Therefore, by its order dated 3.2.2004, appellant Mangilal was released on bail. The appellant deposited Rs. 4,000/- towards the amount of surety bonds and sought time to deposit the remaining amount of Rs. 16,000/-. He sought time on so many dates but did not deposit the amount. Ultimately on 1.10.2004 filed an application before the trial Court praying for his exoneration from depositing the remaining amount of Rs. 16,000/- on the ground that he had already deposited Rs. 4,000/- and also remained in Civil Jail for two months. This application was dismissed by order dated 2.11.2004 and the same has been challenged before this Court in this appeal. The contention of the counsel for the appellant is that Court below is having power to reduce the recovery of surety amount as a penalty as per Provision under section 446 sub-section 3 of the Code of Criminal Procedure and dismiss the application of the appellant without showing any valid and cogent reason for not exercising its discretion in favour of the appellant either by exonerating him from depositing remaining amount of Rs. 16,000/- or reducing the amount as a penalty as ordered to be paid. Learned counsel has submitted that main accused Pappanlal has already been acquitted by the trial Court. 16,000/- or reducing the amount as a penalty as ordered to be paid. Learned counsel has submitted that main accused Pappanlal has already been acquitted by the trial Court. On the other hand, Mr. Upadhyaya, learned Deputy Government Advocate for the State has submitted that final order was passed on 30.11.2004 and thereafter, the appellant sought time to deposit the remaining amount, therefore, he could not file the application for exoneration or reduction of the amount of penalty. Having heard learned counsel for the parties and after perusing the record, this Court is of the opinion that learned trial Court has jurisdiction as per provision under section 446 of sub.-section (3) of the CrPC, to reduce the amount of surety which was ordered to be recovered as a penalty. Though this provision is discretionary but the learned trial Court should exercise its discretion judiciously and while dismissing the application of the appellant, the trial Court should show in its order as to why the discretion was not exercised in favour of the appellant either by fully exonerating him or by reducing the amount of penalty. The surety has already deposited Rs. 4,000/-. He also remained in Civil Jail for two months and the accused for whom he stood as surety, has already been acquitted by the trial Court are the grounds which could be considered by the trial Court at least for reducing the amount which was required to be paid by the surety, learned trial Court has hot assigned any valid reason for not exemciology the discretion in favour of the appellant. Having considered the facts and circumstances of the present case, provision under section 446 of sub-section (3) of the CrPC, since the appellant remained in jail for two months and also deposited Rs. 4,000/-, he deserves sympathitical treatment especially when the main accused for whom he stood surety, has been acquitted. Learned counsel has submitted that the appellant is earning his livelihood by working as labourer. He is aged about 50 years having responsibility to maintain his family. In this view of the matter, the ends of justice would be served by reducing the remaining amount of Rs. 16,000/- to Rs. 2,000/-. Thus, this appeal is allowed in part. Now appellant is directed to· deposit only Rs. 2,000/- in the trial Court on or before 25th of February, 2005. In this view of the matter, the ends of justice would be served by reducing the remaining amount of Rs. 16,000/- to Rs. 2,000/-. Thus, this appeal is allowed in part. Now appellant is directed to· deposit only Rs. 2,000/- in the trial Court on or before 25th of February, 2005. Failing which trial Court shall take necessary steps for the recovery of this amount in accordance with law. In the result, this appeal stands allowed in part in the terms indicated hereinabove.