Mouji Ram vs State of Haryana

Gurdev Singh, J.—This appeal has been preferred by Mouji Ram-appellant/surety challenging the orders dated 14.11.2000 and 24.03.2003 passed by Additional Sessions Judge, Panipat. FIR No.550 dated 27.06.1997 was registered against Sher Singh accused u/s 20 of the NDPS Act, 1985. After his arrest, he was ordered to be released on bail on his executing personal bond in the some of Rs. 1 lac with two sureties of the like amount. In pursuance of that order, one of the surety bond in the said amount was furnished by the appellant/surety. The accused jumped bail as a result of which non-bailable warrants were issued against him and notices were issued to both the sureties u/s 446 Cr.P.C. After the notice was served upon the appellant/surety, he appeared before the Additional Sessions Judge and sought time to produce the accused before the Court. Instead of producing the accused in Court, he himself absented and never appeared. While taking the proceedings under the said section, the Additional Sessions Judge imposed a penalty of Rs. 1 lac upon the appellant/surety, vide order dated 14.11.2000. The appellant/surety filed an application for exempting the amount of penalty, which was dismissed by the Additional Sessions Judge, vide order dated 24.03.2003.

In the grounds of appeal, it has been contended by the appellant/surety that he had asked his counsel to withdraw the surety papers in the month of January, 1988 and he was assured by his counsel that those papers have been withdrawn but in fact the counsel had not processed to withdraw the surety papers. In pursuance of the notice, he appeared before the Court and explained his position. Without properly going through the facts and circumstances, the Court, in the absence of the appellant/surety imposed the penalty of Rs. 1 lac upon him. It has also been stated that the amount of penalty has already been deposited.

I have heard the learned counsel for both the parties.

It has been submitted by the counsel for the appellant that once a surety has made up his mind not to stand as such for the accused, he can withdraw the surety bonds so furnished by him and the trial Court is not competent to impose any such penalty. He also contended that the amount of penalty so imposed has already been deposited. The appellant is a poor person and has been able to deposit the penalty only after selling his land.

On the other hand, it has been submitted by the State counsel that no such application was moved by the appellant for getting himself discharged of the surety bond and that the notice u/s 446 Cr.P.C. was duly served upon him, after he appeared before the trial Court and in reply to the notice, he has stated that he would produce the accused before the Court but failed to do so. Keeping in view the nature of the offence for which the accused was standing trial, the penalty of Rs. 1 lac can not said to be on the higher side as the offence was punishable with fine of Rs. 1 lac. There was no question of remitting any such amount of penalty when the applicant failed to produced the accused before the trial Court.

The trial Court followed the due procedure prescribed u/s 446 Cr.P.C before imposing the penalty upon the appellant. Notice u/s 446 Cr.P.C. was duly served upon him, calling upon him to show why he be not directed to deposit sum of Rs. 1 lac as penalty. In reply to the notice, he stated that he would produce the accused before the Court. The case was adjourned to enable him to produce the accused but on the adjourned date he himself absented. A perusal of the records of the trial Court shows that the accused was declared as proclaimed offender and after recording the evidence of the prosecution under 299 Cr.P.C. the file was consigned. Thus, the appellant was instrumental in helping the accused to escape from the reins of law. After taking into consideration the facts and circumstances, the trial Court imposed a penalty of Rs. 1 lac upon the appellant/surety.

In case, the appellant wanted to get himself discharged of his surety bond, he was required to move an application to that effect, in the presence of the accused so as to enable him to furnish a fresh surety bond, Giving of such instructions only to that effect to the counsel does not amount to the discharge of the surety.

The appellant moved an application for exempting the amount of penalty, which was dismissed by the trial Court on the ground that the same will amount to review of the order imposing the penalty. The application could not have been dismissed on that ground, as there is specific provision contained in Sub Section (3) of Section 446 Cr.P.C. which empowers the Court to remit any part of the amount of the penalty and it does not amount to review of the order.

Keeping in view the fact that the appellant showed the bonafide by depositing the whole amount of penalty of Rs. 1 lac and that he is said to be a poor person, a sum of Rs. 50,000/-of that penalty is remitted. Out of total amount of Rs. 1 lac so deposited Rs. 50,000/- be refunded to him.

The appeal is disposed of.