Gulam Nabi and Another vs State of Rajasthan

Farooq Hasan, J.—This criminal appeal is directed against the order dated 17-1-1989 passed by the Sessions Judge, Jhalawer in Cr. Case No. 9/89 where by the amount of personal bond so also the amount of surety bond of the accused and his surety, have been forfeited holding therein that the appellant who was facing trial under the NDPS Act before the trial Court and was on bail, remained absent on 19-12-1988.

It has not been disputed that on the day of heating i.e. 19-12-1988, appellant Gulam Nabi sent a telegram of his illness where in it was also prayed that personal appearance of the appellant (Gulam Nabi) be exempted and further it was stated that because of his illness, the appellant (Gulam Nabi) was unable to attend the Court. On 19-12-1988 an application for exemption was also filed by the counsel for the appellant (Gulam Nabi) The learned trial Court forfeited the amount only on the ground that no affidavit was filed before it and apart from that, no medical certificate was filed.

I have perused the application dated 19-12-1988 filed by the learned Counsel for the accused-appellant (Gulam Nabi) before the trial Court for exemption from appearance. In that application it has been stated that appellant, Gulam Nabi was suffering from diarrohea and had sent Ayyub so as to inform the Advocate about his illness. Application dated 19-12-1988 is available in the trial court file and that apart, telegram said to have been sent by the appellant (Gulam Nabi) is also available.

In view of the aforesaid circumstances, it appears that Gulam Nabi (accused-appellant) has taken caution in order to avoid proceedings u/s 446, Cr. PC but, still the trial Court initiated proceedings and passed the impugned order. The aforesaid circumstances also show that the absence of the appellant Gulam Nabi was not wilful. Consequently this appeal is allowed. The impugned order dated 17-1-1989 of the learned Sessions Judge, Jhalawar, is set aside.