Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 233 (HP)

Shiv Dei v. State of Himachal Pradesh

2020-03-17

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. (Oral) - Instant criminal appeal under S.449 CrPC, lays challenge to order dated 14.1.2020 (Annexure A-l) passed by learned Special Judge, Chamba Division, Himachal Pradesh, whereby learned Court below, while holding appellant liable to pay penalty to the tune of Rs.5.00 Lakh, has issued a direction to the District Collector, Chamba, to realize the penalty amount as arrears of revenue, as provided under S.421(b) CrPC. 2. Learned Deputy Advocate General, having carefully perused the averments contained in the appeal as well as documents annexed therewith, fairly, states that no reply is required to be filed by the respondent-State. 3. Precisely, the facts of the case, as emerge from the record are that a person namely Rehmat Ali, accused in FIR No. 25, dated 24.3.2018, registered at Police Station, Dalhousie, District Chamba, Himachal Pradesh, under Ss. 25 and 29 of the Narcotic Drugs & Psychotropic Substances Act and S. 181 of the Motor Vehicles Act, was ordered to be enlarged on bail by this Court vide judgment dated 8.3.2019 passed in CrMP(M) No. 203 of 2019 (Annexure A-2), subject to his furnishing personal bonds in the sum of Rs.5.00 Lakh and one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate /trial Court, with the following conditions: (a) "He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court." 4. Order dated 16.12.2019 (Annexure A-4) passed by learned Court below, reveals that on 16.12.2019, above named accused, Rehmat Ali, failed to put in appearance on account of compelling circumstances but filed an application seeking therein his exemption from appearance on the date fixed by learned Court below. Order dated 16.12.2019 (Annexure A-4) passed by learned Court below, reveals that on 16.12.2019, above named accused, Rehmat Ali, failed to put in appearance on account of compelling circumstances but filed an application seeking therein his exemption from appearance on the date fixed by learned Court below. Perusal of the application for exemption filed by the accused, Rehmat Ali, (Annexure A-3), reveals that he was unable to put in appearance on the given date i.e. 16.12.2019 on account of heavy snow fall and blockage of road. The application as referred to above was presented to the Court by learned counsel of the accused but learned Court below rejected the same on the ground that the accused has flouted the conditions imposed by this Court, while enlarging him on bail and cancelled the bail bonds furnished by him. Learned court also issued non-bailable warrants to the surety, Shiv Dei, (appellant herein) under S.446 CrPC and directed that the accused Rehmat Ali and surety, Shiv Dei, shall remain present in the court. 5. Subsequently, vide order dated 14.1.2020 (Annexure A-l), learned Court below disposed of the proceedings initiated against Shiv Dei under S.446 CrPC, on account of her failure to produce the accused, Rehmat Ali, in the court on 16.12.2019. Though, learned Court below took notice of the reply filed by the appellant herein to the notice issued against her under S. 446CrPC, wherein she has categorically stated that the accused Rehmat Ali, could not appear on the given date as roads were blocked due to heavy snow but despite that proceeded to hold that the accused Rehmat Ali has flouted the conditions imposed by this Court, while passing judgment dated 8.3.2019 n CrMP(M) NO. 203 of 2019 and, accordingly held the present appellant liable to pay a penalty in the sum of Rs.5.00 Lakh for her failure to produce the accused, Rehmat Ali, in the court. Learned Court below also issued warrant by way of attachment for sale of property under S. 421(1), directing District Collector, Chamba to realize the penalty amount as arrears of land revenue. In the aforesaid background, appellant has approached this Court in the instant proceedings, praying therein to set aside the impugned order, dated 14.1.2020 (Annexure A-l). 6. Learned Court below also issued warrant by way of attachment for sale of property under S. 421(1), directing District Collector, Chamba to realize the penalty amount as arrears of land revenue. In the aforesaid background, appellant has approached this Court in the instant proceedings, praying therein to set aside the impugned order, dated 14.1.2020 (Annexure A-l). 6. Since the factum with regard to filing of the application for exemption by the accused, Rehmat Ali, on 16.12.219 stands duly recorded in the order dated 16.12.2019, there appears to be no necessity to call for the records of learned Court below. Moreover, the orders placed on record are otherwise self-explanatory. It is not in dispute that on 16.12.2019, when the case was listed before learned Court below, an application came to be filed on behalf of the accused-Rehmat Ali, seeking therein exemption from appearance on the ground of heavy snowfall and road blockage. Order dated 16.12.2019 passed by learned Court below, though suggests that it took cognizance of the application for exemption filed on behalf of accused Rehmat Ali, but there is no plausible explanation rendered on record for rejecting the same. Learned Court below, proceeded to reject the application on the ground that the accused violated the conditions imposed upon him by this Court, while enlarging him on bail but it appears that learned Court below failed to take note of the liberty reserved to the accused-Rehmat Ali by this Court, for moving an appropriate application seeking exemption from appearance, if he is/was prevented from doing so on account of some compelling circumstances. Condition (a) as contained under para-13 of judgment dated 8.3.2019, clearly provides that the accused could seek exemption from appearance on account of compelling circumstances, by moving an appropriate application. 7. In the case at hand, Rehmat Ali rendered on record plausible explanation for his non-appearance on the date fixed by learned Court below. Order dated 16.1.2019 passed by learned Court below, nowhere suggests that the application having been filed by the accused Rehmat Ali was rejected on the ground that he did not furnish correct information, rather, the application came to be rejected on the ground that the accused Rehmat Aliflouted the conditions imposed by this Court, while enlarging him on bail. 8. Order dated 16.1.2019 passed by learned Court below, nowhere suggests that the application having been filed by the accused Rehmat Ali was rejected on the ground that he did not furnish correct information, rather, the application came to be rejected on the ground that the accused Rehmat Aliflouted the conditions imposed by this Court, while enlarging him on bail. 8. Factum with regard to closure of road on account of heavy snowfall never came to be verified by learned Court below before passing impugned order dated 16.12.2019, as such, it cannot be said that no plausible explanation came to be ever rendered on record, on behalf of the accused- Rehmat Ali, for not putting appearance on the given date. Since an appropriate application through counsel was moved, seeking therein exemption from appearance on the given date by the accused, Rehmat Ali, learned Court below ought not have passed order dated 16.12.2019. Since order dated 16.12.2019 is not tenable for the reasons stated herein above, notice, if any, issued thereafter under S.446 CrPC cannot be said to be in accordance with law. Similarly, this Court finds that learned Court below, while passing order dated 14.1.2020 though took note of the reply filed by the surety (petitioner herein) that on 16.12.2019, accused Rehmat Ali, was unable to put in appearance on account of compelling circumstances but still, despite there being no plausible justification, proceeded to hold the petitioner herein liable to pay penalty in the sum of Rs.5.00 Lakh. Since appropriate application disclosing therein cogent and convincing reasons for non-appearance on the date fixed by learned Court below was submitted by the accused-Rehmat Ali, orders dated 16.12.2019 (Annexure A-4) and 14.1.2020 (Annexure A-l) passed by learned Court below cannot be said to be sustainable in the eye of law . 9. Consequently, in view of the aforesaid discussion, present appeal is allowed and orders dated 16.12.2019 (Annexure A-4) and dated 14.1.2020 (Annexure A-l) passed by learned Special Judge, Chamba Division, Himachal Pradesh are set aside. Proceedings initiated against the petitioner under S. 46 CrPC are also quashed and set aside. All pending applications also stand disposed of. Copy Dasti.