Jahir Hasan and Another vs The State

Dharam Veer, J.—This appeal, preferred u/s 449 of the Code of Criminal Procedure, 1973 [hereinafter to be referred as Cr.P.C.], is directed against the order dated 16.2.1996 passed by the Sessions Judge, Haridwar in Criminal Misc. Case No. 122 of 1995, State v. Jahir Hassan and Ors., u/s 446 Cr.P.C. thereby imposing penalty of Rs. 4,000/- each against the appellants/ accused and in case of non-payment of penalty, six months simple imprisonment was awarded and accordingly the recovery warrant was also directed to be issued.

Heard learned Counsel for the parties and perused the material available on record.

The appellants stood as the sureties for the accused Ishwar who was facing trial u/s 147/148/149/302 IPC. Thereafter, when the accused became absent, on 01.12.1995 notice u/s 446 Cr.P.C. was issued against the appellants, which too was served upon them. After that the appellants appeared before the court below and on 10.1.1996, time was sought by them to file the written statement and the next date was fixed for 16.2.1996. But on the next date fixed i.e. 16.2.1996, neither they appeared before the court below nor they filed any written statement and accordingly, the court below passed the impugned order. Hence this appeal.

The appellants stood as sureties of accused Ishwar and the amount of surety was Rs. 4,000/-. The court below provided opportunity to the appellants to produce the accused before the court for which notice u/s 446 Cr.P.C. was also issued to him which too was sufficiently served upon him, and they also sought time to file the written statement, but when they failed to comply with the order dated 10.1.96, the court below passed the impugned order thereby directing the appellants to deposit Rs. 4,000/- each and in case of default, six months'' S.I. was awarded. Against the said order, this appeal has been preferred. As such, I find that the compliance of Section 446 Cr.P.C. is made by the court below and the order dated 16.2.1996 passed by the court below is justified.

Learned Counsel appearing for the appellants argued that the appellants are the poor persons as they are simply the labouers, they have to look after their family also and in view of this precarious position, the appellants cannot pay the amount of Rs. 4,000/-. It was further argued that the amount of surety may be remitted to Rs. 2,000/- each.

After considering all the facts and circumstances of the case, hearing learned Counsel for the parties and also considering the financial status of the appellant and other family conditions, the appeal is partly allowed with direction that the order dated 16.2.1996 passed by the court below is affirmed. However, the penalty amount of each of the appellants is reduced to Rs. 2,000/- instead of Rs. 4,000/-. The trial court is directed to recover the penalty amount from the appellants as per the law.