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2008 DIGILAW 1174 (PNJ)

Narender Son Of Surja Ram v. State Of Haryana

2008-07-04

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the order dated 18.10.2007, rendered by the Court of Sh. J.S. Dahiya, Additional Sessions Judge (1) Fatehabad, vide which it imposed penalty of Rs. 50,000/- on Narender, applicant (hereinafter referred to as appellant), who stood surety for Vijay Pal, accused, and failed to produce him. 2. The facts necessary, for the adjudication of controversy, are that Vijay Pal, accused, in case FIR No. 42 dated 24.01.2007, under Sections 353 and 307 of the Indian Penal Code, 25 of the Arms Act, and 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 was granted interim bail, in the sum of Rs. 50,000/- with two sureties, in the like amount each, for a period of 15 days, from 27.8.2007 to 11.9.2007, so as to enable him to attend the cremation of his mother and perform other rituals. Vijay Pal, accused, was directed to surrender in the Court on 12.9.2007. Narinder, appellant, stood one of the sureties of Vijay Pal, accused. He furnished surety bond in the sum of Rs. 50,000/- which was accepted by the court. Ultimately, Vijay Pal, accused was released on interim bail, referred to above, but he failed to surrender in the Court on 12.9.2007. His personal bond and surety bond were cancelled and forfeited to the State. Notice under Section 446 of the Code of Criminal Procedure, was issued to Narender, surety to show cause, as to why, the amount of forfeited surety bond, be not recovered from him. 3. In pursuance of the aforesaid notice, Narender surety, put in appearance in the Court on 27.9.2007 and made a statement that he will produce Vijay Pal, accused, on the next date of hearing, failing which, he will deposit the amount of Rs. 50,000/-. Accordingly, the case was adjourned to 18.10.2007 for production of Vijay Pal, accused. On 18.10.2007, Narender, appellant, again appeared in the Court and made a statement, to the effect that the whereabouts of Vijay Pal, accused, were not known to him and, therefore, he was not able to produce him. Accordingly, penalty of Rs. 50,000/- was imposed upon him. 4. Feeling aggrieved, the instant appeal was filed by Narender, appellant. 5. I have heard the counsel for the parties and have gone through the record of the case, carefully. 6. Accordingly, penalty of Rs. 50,000/- was imposed upon him. 4. Feeling aggrieved, the instant appeal was filed by Narender, appellant. 5. I have heard the counsel for the parties and have gone through the record of the case, carefully. 6. The Counsel for the appellant, at the very outset, submitted that no sufficient opportunity, was granted to the appellant, by the trial Court to produce Vijay Pal accused. He further submitted that the survey (appellant) was, thus, condemned unheard, and as such, the order impugned is liable to be set aside. He further submitted that the penalty imposed upon the appellant being very harsh, is liable to be remitted. 7. On the other hand, the counsel for the respondent, submitted that sufficient opportunity was granted to the appellant/surety, to produce Vijay Pal, accused, but when he failed to do so, no alternative was left with the court, to impose penalty upon him. He further submitted that since the appellant failed to produce Vijay Pal, accused in the Court, despite having been afforded sufficient opportunity and even till date, the accused has not been arrested, it could not be said that the penalty imposed, upon the appellant/surety, was in any way harsh. He further submitted that, no ground, whatsoever, was made out for remission of the amount of penalty imposed, upon the appellant/surety. 8. When Vijay Pal, accused, did not surrender in the court on 12.9.2007, in pursuance of the conditions imposed, in the order of interim bail, granted to him, his personal bond and surety bond, were cancelled and forfeited to the State. It is evident from the record that notice under Section 446 of the Code of Criminal Procedure was served upon the surety-appellant, and he made a statement, that he will produce the accused on 18.10.2007. He again came present, in the Court, on 18.10.2007 but was unable to produce the accused. On the other hand, he made a statement, that he was unable to locate the whereabouts of the accused. It, therefore, could not be said that sufficient opportunity was not granted to the surety/appellant, to produce the accused. In my opinion, reasonable opportunity was afforded to the surety-appellant, to locate and produce the accused in the court, but when he showed his inability to preduce him, left with no other alternative, the trial Court, imposed penalty upon him. It, therefore, could not be said that sufficient opportunity was not granted to the surety/appellant, to produce the accused. In my opinion, reasonable opportunity was afforded to the surety-appellant, to locate and produce the accused in the court, but when he showed his inability to preduce him, left with no other alternative, the trial Court, imposed penalty upon him. It, therefore, could not be said that the surety was condemned unheard. The submission of the Counsel for the appellant in this regard, being without merit, must fail and the same stands rejected. 9. In the second submission of the Counsel for the appellant, there is some merit. There is no indication, on the record, that the surety, in any way, had a scent that the accused was not likely to surrender, in the court on 12.9.2007, or that he was planning to abscond. There is no material on the record to indicate, that the surety, in any way, connived with the accused, so as to facilitate his flee, from the portals of justice. There is no material, on the record, to indicate that the surety/appellant was having an idea, that the accused will jump the bail. In Mohammed Kunju v. State of Karnataka 1999(4) R.C.R. (Criminal) 726 (S.C.), the Apex Court remitted the penalty partly scaling it down from Rs. 25,000/- to Rs. 5,000/- finding that there was neither any connivance of the surety, in facilitating the abscondance of the accused, from the Court, nor he had any inkling that he will jump the bail and abscond. In this view of the matter, it could be said that the amount of penalty imposed upon the surety/appellant was excessive. It deserves to be scaled down from Rs. 50,000/- to Rs. 30,000/-. The submission of the counsel for the appellant, to this extent, is accepted. 10. For the reasons recorded herein-above, the appeal is partly accepted. The amount of penalty of Rs. 50,000/- imposed upon the surety/appellant, by the trial Court, is reduced to Rs. 30,000/-. The trial Court is directed to take necessary steps, in accordance with law, for the recovery of the reduced amount of penalty of Rs. 30,000/- from the surety, if already not recovered.