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2013 DIGILAW 52 (CHH)

Janak Ram Verma v. State of C. G.

2013-02-06

G.MINHAJUDDIN

body2013
ORDER As per Hon'ble Shri G. Minhajuddin, J. 1. The matter is listed for orders on admission. However, with the consent of the parties, it is being disposed of finally. 2. This criminal revision has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 against the order dated 5.10.2012 passed by the First Additional Sessions Judge, Baloda Bazar, Distt. Raipur, in miscellaneous case relating to Cr.A.No. 186/07, pending before this Court, which has arisen out of S.T.No. 190/06, whereby the application filed by the revision petitioner/surety for discharging him, has been rejected. 3. As per case of the revision petitioner, trial of one Daova Dhimar, S/o Budhu Dhimar, (respondent No.2/accused herein) was conducted by the First Additional Sessions Judge, Baloda Bazar, Distt. Raipur (hereinafter referred to as "the trial Court") in S.T. No. 190/06 for the offences punishable under" Sections 450 and 376 of the IPC and by the judgment dated 27.2.2007, he was convicted under both the Sections. Under Section 376 of the IPC, he was sentenced to undergo RI for 7 years, pay a fine of Rs.500/-, in default thereof, to undergo additional RI for 2 months and under Section 450 of the IPC, he was sentenced to undergo RI for 3 years, pay a fine of Rs.500/- and in default thereof, to undergo further RI for 2 months. Against the said judgment of conviction and order of sentence dated 27.2.2007, respondent No.2/accused herein preferred an appeal i.e. Cr.A.No. 186/07 before this Court alongwith an application under Section 389 of Cr.P.C. for suspension of sentence and grant of bail. This Court vide order dated 9.7.2007 allowed the said application and directed that execution of the substantive jail sentence awarded to the appellant/convict (respondent No.2/accused herein) shall remain suspended till disposal of the appeal in case he furnishes a personal bond of Rs. 10,000/- with one surety of the like amount to the satisfaction of the trial Court. In compliance thereof, respondent No.2/accused furnished a personal bond and surety bond of the revision petitioner, which was accepted and he was released on bail and continued to appear before the trial Court as directed. 4. Thereafter, as the revision petitioner was in need of money and intending to sell his immovable property, therefore, he appeared alongwith respondent No.2/accused and his counsel Ku. 4. Thereafter, as the revision petitioner was in need of money and intending to sell his immovable property, therefore, he appeared alongwith respondent No.2/accused and his counsel Ku. Deepa Soni before the trial Court and moved an application for discharging him. On that date, respondent No.2/accused was also ready to furnish a new bond of another surety. However, the said application was rejected on the ground that the papers relating to bail of respondent No.2/accused are not available with the trial Court. 5. Heard learned counsel for the parties and perused the impugned order. 6. It is not in dispute that vide order dated 9.7.2007 passed by this Court in Cr.A.No. 186/07, the application filed on behalf of respondent No.2/ accused for suspension of sentence was allowed and pursuant to that order, on the basis of surety bond furnished by the revision petitioner, respondent No.2/accused was released on bail. On 5.10.2012, the revision petitioner along with respondent No.2/accused and his counsel Ku. Deepa Soni had appeared and moved an application before the trial Court for discharging him from his suretyship. In such a situation, the trial Court, after ascertaining the fact whether the revision petitioner had actually stood surety for respondent No.2/accused or not, and after taking respondent No.2/accused into custody, should have discharged the revision petitioner because the liability of a surety is only to produce the accused in person before the Court, which the revision petitioner had done on 5.10.2012. However, the same has not been done by the trial Court. Therefore, the trial Court has certainly committed an illegality and impropriety in rejecting the application of the revision petitioner in a casual manner on the ground that the papers relating to bail of respondent No.2/accused are not available with the Court. 7. For the reasons stated above, the instant revision petition is allowed in part. The impugned order dated 5.10.2012 passed by the trial Court is set aside and the matter is remanded back to the trial Court for deciding the application filed by the revision petitioner for discharging him afresh in accordance with law, after ascertaining the fact whether the revision petitioner herein had actually stood surety for respondent No.2/accused and on production of respondent No.2/accused before the trial Court by the revision petitioner. 8. 8. The revision petitioner shall be free to file certified copy of all the relevant documents for the purpose of assisting the trial Court in deciding his application in accordance with law. The revision petitioner shall appear alongwith respondent No.2/accused before the trial Court on 26th February, 2013, on which the application of the revision petitioner shall be decided expeditiously by the trial Court as directed above. Revision Partly Allowed.