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Himachal Pradesh High Court · body

2016 DIGILAW 889 (HP)

Sangat Ram v. State of H. P.

2016-05-23

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the order dated 31.3.2016, rendered by the learned Special Judge, Kullu, H.P., in Cr.M.P. No. 174 of 2013. 2. “Key facts” necessary for the adjudication of this appeal are that the appellant stood surety of accused Puran Jei in a case under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act). Surety bonds in the sum of Rs. 5,00,000/- were executed by the appellant for securing the presence of the accused in the Court. The accused did not appear before the learned trial Court and as per order dated 16.7.2013, bonds were cancelled and forfeited and proceedings under Section 446 Cr.P.C. were initiated. The show cause notice was issued to the appellant. He filed the reply to the notice. He admitted that he stood surety for the accused Puran Jei. Puran Jei was a Nepali national. According to him, the accused was not heard since 8.5.2013 and he suspected that the accused might have fallen from a cliff or drowned somewhere. The proceedings were closed vide order dated 31.3.2016 and penalty of Rs. 4,00,000/- was imposed upon the petitioner. He was directed to deposit the amount within a period of one month, failing which, the amount was to be recovered as penalty by issuing appropriate warrant to the quarter concerned to realize the amount in question. The necessary compliance was ordered to be made after one month by initiating separate proceedings for recovery of amount i.e. Rs. 4,00,000/- returnable for 23.5.2016. Hence, this appeal. 3. Mr. Ajay Sharma, Advocate, appearing on behalf of the appellant has vehemently argued that whereabouts of accused Puran Jei were not known. His client has made all the efforts to trace him. 4. I have heard the learned counsel for both the sides and have also gone through the order and records of the case carefully. 5. The appellant has appeared as RW-1. He testified that the accused was residing in village Chhalal for the last 25 years and his family still resides in that village. He had furnished surety for him. Accused used to appear in the Court. On 8.5.2013, accused came to the Court, but he did not reach in the Court. The approach of the house of the accused was dangerous. Rapat Mark-A was lodged by the wife of the accused. He had furnished surety for him. Accused used to appear in the Court. On 8.5.2013, accused came to the Court, but he did not reach in the Court. The approach of the house of the accused was dangerous. Rapat Mark-A was lodged by the wife of the accused. The accused was searched by the police, however, he was not traceable. He admitted that the surety bond was in the sum of Rs. 5,00,000/-. 6. RW-2 has proved Rapat No. 11 dated 21.5.2013 vide Ext. RW-2/A. It was made by the wife of the accused that the accused was not traceable. 7. RW-3 deposed that the search of accused was made at Bhunter, Jari and Manikaran as well as at Kullu. 8. Soon Kumari, RW-4 is wife of the accused. According to her, they are residing in Kullu District for the last 25-26 years. Her children were also born in village Chhalal. They are studying in the school. Her husband went to attend Court on 8.5.2013 and did not return back. She lodged report Ext. RW-2/A on 21.5.2013. According to her, there is river and hillock and it appears that her husband might have fallen in a river or from hillock and died. She has categorically admitted that they are permanent residents of Nepal. She did not go to Nepal after 8.5.2013. 9. The case was pending for prosecution evidence. The accused was found in exclusive possession of 1 kg and 200 grams of charas. The case was fixed for prosecution evidence on 8.5.2013, on which date, accused did not attend the Court proceedings. The bonds were cancelled and forfeited on 16.7.2013. The accused was declared absconder vide order dated 21.4.2014. Soon Kumari, RW-4 has admitted that her husband used to go to Nepal. It has also come in the evidence that the accused was not searched in Nepal by the surety. The theory propounded by the appellant that accused might have died cannot be believed. It has also come on record that when the accused had gone missing, the weather was clear and it was not raining. 10. The learned Single Judge of the Madhya Pradesh High Court in the case of Sahab Singh vs. State of M.P., reported in 2006 Cri. It has also come on record that when the accused had gone missing, the weather was clear and it was not raining. 10. The learned Single Judge of the Madhya Pradesh High Court in the case of Sahab Singh vs. State of M.P., reported in 2006 Cri. L.J. 348 has held that the very object of the bail bond is to ensure the appearance of the accused in the Court and the duty of the surety is to see that he remained present continuously until he is directed otherwise. If the accused appears and does not remain present till the conclusion of the proceedings or orders passed by the Court, it cannot be said that he appeared and thereafter the surety is not liable. The appearance clearly means that he will appear and remain present till further orders passed by the Court either to fix next date of hearing or pronouncement of judgment. The learned Single Judge has been held as follows: “5. Section 446 of the Code of Criminal Procedure provides about the forfeiture of bond. Section 441 makes provision regarding bond of accused and sureties. It provides that before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more than sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. From a bare reading of the aforesaid provision of Section 441, it is clear that the surety shall be liable for the appearance of the accused in the Court not only on one hearing but on all subsequent hearings as may be fixed by the Court and the bond shall continue to remain in operation until otherwise directed by the Court. This clearly mean that the accused will not only appear on one hearing but shall continue to appear until otherwise directed on the assurance given by the surety in the surety bond. Sub-section (2) of Section 441, Cr.PC clearly provides that the bond shall also contain that condition. Section 441, Cr.PC also provides the conditions in which surety will be discharged. Sub-section (2) of Section 441, Cr.PC clearly provides that the bond shall also contain that condition. Section 441, Cr.PC also provides the conditions in which surety will be discharged. Therefore, as per the surety bond, appellant is liable to produce the accused and secure his presence and until and unless otherwise directed the accused is bound to remain present before the Court on all the days of hearing. Appellant can not be absolved from his liability merely by saying that accused was present in the Court and was under the custody of the Court and if he ran away he is not liable. The very object of the bail bond is to ensure the appearance of the accused in Court and the duty of the surety is to sec that he remained present continuously until he is directed otherwise. If the accused appears and does not remain present till the conclusion of the proceedings or orders passed by the Court, it can not be said that he appeared and thereafter the surety is not liable. Appearance clearly means that he will appear and remain present till further orders passed by the Court either to fix next date of hearing or pronouncement of judgment or any other direction given by the Court. Surety cannot say that for some time he remained present in the Court, therefore, he is not liable. If the accused ran away it means he did not remain present in the Court till the orders were passed by the Court and in such circumstances the liability of the surely cannot be discharged and the surety is liable. Under the law, position is clear and, the argument of the learned Counsel for the appellant cannot be accepted being fanciful.” 11. Accordingly, in view of the observations and discussion made hereinabove, there is no merit in this appeal and the same is dismissed.