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Madhya Pradesh High Court · body

2017 DIGILAW 843 (MP)

MANJU w/o SURENDRA SINGH RANA v. STATE OF M. P.

2017-07-19

G.S.AHLUWALIA

body2017
JUDGMENT : 1. This Criminal Appeal under section 449 of Criminal Procedure Code has been filed against the order dated 16-3-2017 by which the court below has directed for recovery of the surety amount from the appellant. 2. The necessary facts for the disposal of the present appeal in short are that the appellant had stood as a surety for one Iqbal Khan and had executed a surety bond of Rs. 50,000/- and accordingly the accused-Iqbal Khan was released on bail. It appears that thereafter the accused-Iqbal Khan jumped the bail and, therefore, notices were issued to the surety/appellant. From the order-sheets of the trial court, it appears that on 15-2-2017 the appellant appeared along with her counsel and filed a Vakalatnama. In reply to the show-cause notice, the appellant gave it in writing that she is ready to deposit the amount of surety bond and prayed for some time to deposit the same and accordingly it was directed that she may deposit the amount within one month and the case was fixed for 16-3-2017. On 16-3-2017, another advocate appeared on behalf of appellant and filed his Vakalatnama along with an application that as the appellant had gone to visit the house of her daughter at Guna where she has fallen ill, therefore, she is unable to appear before the court. It was further stated that as the appellant is unable to deposit the amount of Rs. 50,000/-, therefore, opportunity be given to file reply to the show-cause notice. 3. It was observed by the trial Court that the accused-Iqbal Khan was released on bail for offences under sections 353, 326 and 333 of Indian Penal Code and the appellant had stood as a surety and had executed a surety bond of Rs. 50,000/- and the proceedings have been initiated under section 446 of Criminal Procedure Code for recovery of the amount. Initially the notices issued to the appellant were returned unserved, but ultimately she appeared on 15-2-2017 before the court and a show-cause notice was given to her as to why the entire amount of surety bond be not recovered from her and in reply to that show-cause notice, a written application was filed to the effect that the appellant is ready to deposit the amount of Rs. 50,000/- and accordingly one months’ time was given. 4. 50,000/- and accordingly one months’ time was given. 4. As the appellant did not appear on 16-3-2017 nor filed any medical document to support her contention that she is not well, therefore, the trial court came to the conclusion that the appellant is trying to avoid payment of the surety amount. Accordingly, it was directed that the amount of Rs. 50,000/- be recovered and recovery warrant was directed to be issued. It was further mentioned that in case if the appellant fails to deposit the amount, then she shall be sent to civil jail for a period of six months. 5. Challenging the order passed by the court below, it is submitted by the counsel for appellant that no opportunity of hearing was given to the appellant and even otherwise if the court is of the view that the surety amount is to be recovered from the appellant, then the entire amount should not have been directed to be recovered, but only a part of the entire amount should have been directed to be recovered. 6. Considered the submissions made by the counsel for the appellant. From the order-sheet dated 15-2-2017, it is clear that the appellant had given a written application accepting her liability to deposit the amount. Thus, under these circumstances it cannot be said that the appellant was never given an opportunity. On 15-2-2017 the appellant was also represented by her counsel, therefore, it cannot be said that the said written application was filed by the appellant without any legal advice. It has not been argued by the counsel for the appellant that the appellant shall make any endeavour to keep the accused-Iqbal Khan present before the court. The only submission made by the counsel for appellant is that although the appellant had executed the surety bond of Rs. 50,000/-, but the entire amount should not have been directed to be recovered. The submission made by the counsel for the appellant that the trial court committed material illegality by directing for recovery of the entire surety bond is misconceived. 50,000/-, but the entire amount should not have been directed to be recovered. The submission made by the counsel for the appellant that the trial court committed material illegality by directing for recovery of the entire surety bond is misconceived. A person is actually released from jail only on the undertaking given as well as surety bond executed by the surety that in case if the accused fails to appear before the Court, then the surety will be liable to deposit the amount of the surety bond and once an accused is released on bail relying on the surety bond executed by the surety, then the surety at a subsequent stage cannot say that he/she is not liable to make payment of the entire amount of surety bond. The surety bond executed at the time of release of the accused is not an empty formality and it should be honoured with all sincereness. Once the court has relied on the undertaking given by the surety, then it is the obligation of the surety either to keep the accused present before the court or to deposit the amount of surety bond. No negotiations should take place in case if the accused fails to appear before the court and his bail bonds are cancelled. Therefore, in the considered opinion of this Court the trial court did not commit any mistake in directing for recovery of the entire amount of the surety bond. Under these circumstances, this court is of the view that this Criminal Appeal is misconceived and is hereby dismissed.