A.K.Mukherjee vs State of Punjab

R.L. Anand, J.

This is a criminal appeal filed under Section 449, Cr.P.C. and has been directed against the order dated 3.12.1997, passed by the Court of Shri N.K. Bansal, Special Judge, Patiala, who cancelled and forfeited the bail bonds of the appellants in favour of the State and issued nonbailable warrants against them with notice to the sureties as to why the amount of sureties be not realized from them.

The brief facts of the case are that Sarvshri A.K. Mukherjee and M.P. Singh along with others are facing trial under section 7 of the Essential Commodities Act and the trial is pending before the court of the Special Judge, Patiala. On 3.12.1997, both these appellants became absent without any prior information. However, the counsel appearing on behalf of these appellants moved an application for the exemption of their personal appearance in court on the ground that both of them were suffering from fever, but no medical certificate from any doctor was attached with that application. Even on the previous date prior to 3.12.1997, Shri A.K. Mukherjee, appellant, was absent and an application for exemption of his personal appearance was filed and was allowed but on 3.12.1997 only an application was moved by the learned counsel for the appellants. The Special Judge came to the conclusion that both the appellants had absented themselves without any reasonable cause, so their bail bonds were cancelled and forfeited to the State. It may also be mentioned that on 3.12.1997 witness Shri S.C. Aggarwal was present but on account of the nonappearance of the appellants, the said witness had to be discharged. Aggrieved by the order dated 3.12.1997, the present appellants have filed the present appeal.

Vide my order dated 7.1.1998, I gave directions to both the appellants to surrender themselves before the court of the Special Judge at Patiala by 8.1.1988. The appeal was listed for today. Shri R.S. Mittal, Senior Advocate, appearing on behalf of the appellants, submitted that the appellants tried to surrender before the Special Court in pursuance of the directions dated 7.1.1998 but the learned Special Judge was on leave and for this reason, they did not appear before him. Today again, I told to the learned senior counsel appearing on behalf of the appellants whether his clients were interested to appear and surrender before the court of Special Judge in pursuance of the order dated 3.12.1997 or not. This direction was given by me keeping in view the facts that the majesty of law has to prevail. The learned senior counsel was hesitant to accept the directions of the court and he preferred to argue the main appeal on merits, which I have disposed of in the presence of Shri R.S. Mittal, Senior Advocate and Shri J.S. Brar, learned D.A.G. appearing for the State.

The learned senior counsel Shri Mittal had assailed the impugned order dated 3.12.1997 mainly on the ground that no finding has been given by the learned Special Judge in the impugned order that the absence on the part of the appellants was intentional. It was further argued that before forfeiting the personal bonds and surety bonds of the appellants, no notice was given to them and in these circumstances, the order dated 3.12.1997 is bad in the eyes of law. On the contrary, the impugned order has been defended by the State on the ground that the appellants have violated the terms of the bonds as they had undertaken that they would appear on each and every date of hearing. They did not appear on 3.12.1997. Even one of them did not appear on the previous date of hearing. The application which was moved before the Special court on behalf of the appellants was not accompanied by any medical certificate so as to come to the conclusion on the part of the learned Special Judge that the absence of the appellants was not wilful. In these circumstances, the order is fully justified.

After considering the rival contentions of the parties, this court is of the considered opinion that the impugned order cannot be vitiated on any illegality as argued by the counsel for the appellants. As per personal bonds, the appellants had undertaken that they would appear on each and every date of hearing. No sufficient cause was shown. Mere filing of the application is not enough as it was not accompanied by any medical certificate. Keeping in view the previous conduct of one of the appellants, the Special Judge rightly came to the conclusion that the absence of the appellants was wilful. No tangible material was placed before the learned Special Judge to come to a conclusion that the absence of both the appellants was not wilful. Even no effort was made on behalf of the appellants to submit before the court that the statement of the witness present on that day may be recorded and that he is ready to crossexamine the witness. The sole object of the appellants was to delay the proceedings. The majesty of law has to prevail. The appellants cannot be allowed to play with the law. No law has been shown to this court which impelled the Special Judge to issue a notice before passing an order regarding cancellation and forfeiture of the bail bonds of the appellants. Notice was required to be given to the sureties as to why the amount of the surety bonds be not realized from them.

In this view of the matter, I do not see any merit in this appeal and the same is dismissed.