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2023 DIGILAW 512 (RAJ)

Himmat Singh v. State of Rajasthan

2023-02-14

FARJAND ALI

body2023
ORDER : Farjand Ali, J. By way of filing instant appeal under Section 449 Cr.P.C., challenge has been made to the order dated 20.01.2023 passed by learned Additional Session Judge No.3, Bharatpur in criminal misc. case No. 56/2021 whereby the learned Judge has dismissed the application filed by the appellant under Section 446(3) Cr.P.C. and issued recovery warrant. 2. Learned counsel for the appellant submits that the appellant is poor villager and since the accused Tikam Chand is the nephew of the appellant and therefore under the bonafide faith, upon insistence of Tikam Chand, he agreed to furnish bail bonds. Later on because of non appearance of accused Tikam Chand, his bail bonds were forfeited by the learned appellate Court and thus warrant of arrest was issued against him. It is further contended that because Tikam Chand implored the accused to become his surety by saying that there was a dispute of amount in between him and the other party and for that a cheque related case was pending in the Court. A notice under Section 446 Cr.P.C. was issued against the appellant. The appellant did his level best to trace and produce accused Tikam Chand before the Court but his efforts went in vain and thus helplessly he filed reply of the proceedings under Section 446 Cr.P.C. It is submitted that circumstances were unavoidable for the petitioner and therefore he made prayer to the learned court to remit the penalty amount under Section 446(3) Cr.P.C. but the same has been turned down and the entire amount of Rs.1,00,000/- has been directed to be recovered from the appellant. It is repeatedly urged that the appellant is a very poor person and he failed to trace the accused despite sincere efforts therefore the impugned order may be set aside. 3. Per contra, learned counsel for the State opposed the prayer made by learned counsel for the appellant. 4. Heard. Considered the arguments and material available on record. It is not disputed that the appellant is the uncle of accused Himmat Singh and he has furnished surety for him in bonafide. There is nothing from which contrary view can be taken that the appellant has not made sincere endeavours to trace and produce the accused Tikam Chand before the Court. Considered the arguments and material available on record. It is not disputed that the appellant is the uncle of accused Himmat Singh and he has furnished surety for him in bonafide. There is nothing from which contrary view can be taken that the appellant has not made sincere endeavours to trace and produce the accused Tikam Chand before the Court. The appellant is the poor farmer of remote village Gadoli, Police Station Nadbai, Bharatpur, therefore it would be onerous for him to deposit the entire amount of Rs.1,00,000/- which if not paid his land may be taken into attachment under the order impugned. Thus a lenient view is being taken under Section 446(3) Cr.P.C. It is trite law that the Court has a discretionary power to reduce the amount and present is a fit case where the discretion is required to be exercised. 5. Accordingly, the appeal is allowed. The order impugned dated 20.01.2023 passed by learned Additional Sessions Judge No.3, Bharatpur in Misc. Criminal Case No. 56/2021 is hereby quashed and set aside. The petitioner is directed to deposit a sum of Rs.10,000/- in lieu of the amount of surety furnished by him. The amount shall be deposited within two months from today failing which the order dated 20.01.2023 shall be rejuvenated. All pending applications stand disposed off.