Ramchandra S/o Battu Ram vs The State of Rajasthan

Appellant has preferred this appeal under Section 449 Cr.P.C.

to challenge impugned order dated 25.11.2017 passed by Special

Court, N.D.P.S. Cases, Hanumangarh (for short, ''learned trial

Court'') in Criminal Misc. Case No.32/2014 arising out of Criminal

Regular Case No.16/2010. By the order impugned, learned trial

Court, while passing final order in proceedings under Section 446

Cr.P.C. against appellant, who stood surety for main accused Bikar

Singh, has imposed penalty of Rs.40,000/- and in default of

payment of the said amount sentenced him to undergo six

months'' civil imprisonment. That apart, the learned trial Court has

also ordered for lodging FIR against the appellant for furnishing

forged Jamabandi as surety alongwith false affidavit.

Succinctly stated, the facts are that a case under the

Narcotic Drugs and Psychotropic Substances Act, 1985 is registered against main accused Bikar Singh and others and after

investigation chargesheet is also filed. When accused Bikar Singh

applied for bail, he was enlarged on bail and as a surety the

appellant submitted surety bond of Rs.40,000/- assuring the Court

that he shall produce accused Bikar Singh on each and every date

of hearing during trial. It appears that after release on bail,

accused did not appear before learned trial Court and therefore his

bail bonds were forfeited and proceedings under Section 446

Cr.P.C. are initiated. As a consequence of initiation of proceedings

under Section 446 Cr.P.C., appellant and other surety were issued

show cause notices and pursuant thereto appellant appeared

before the learned trial Court through counsel. Later on, on behalf

of appellant an application is submitted on 18.07.2014 apprising

the learned trial Court that accused is presently living as hermit in

an Ashram at Bhatinda (Punjab) and he is prepared to accompany

any person to get him arrested by Nishadehi. Be that as it may,

the fact remains that main accused Bikar Singh was not

apprehended and finally appellant as well as other surety frankly

conceded before the learned trial Court that they are unable to

produce accused Bikar Singh. It is in that background, the learned

trial Court issued warrant of attachment for the land allegedly

shown to be owned by the appellant while furnishing surety. On

inquiry, it was revealed that Jamabandi for the land in question,

produced by the appellant, was a fake document and in fact

appellant was having no agricultural land within Hanumangarh

district. This sort of situation prompted the learned trial Court to

issue arrest warrant against appellant and when the appellant

appeared before the Court, the Presiding Officer of the Court was

on leave and therefore the appellant was released on bail by link

Court. In the said order, learned link Court while acceding to the

prayer of the appellant granted him time to deposit Rs.40,000/-.

Subsequent to that, after availing many opportunities, when

requisite penalty amount of Rs.40,000/- was not deposited by the

appellant, learned trial Court, while resorting to proviso to sub-

sec.(2) of Section 446 Cr.P.C. ordered for his six months'' civil

incarceration. Besides that, learned trial Court also ordered for

registration of FIR against appellant for furnishing forged

Jamabandi and submitting false affidavit before the Court.

Therefore, in these circumstances, the appellant has approached

this Court by way of this appeal.

Learned counsel for the appellant, Mr. Kulwant Singh, at the

outset submits that appellant is assailing the impugned order in

part inasmuch as his grievance is only to the extent of quantum of

penalty determined by the learned trial Court and the appellant is

not challenging the impugned order to the extent learned trial

Court has directed registration of FIR against him. Mr. Kulwant

Singh submits that appellant is a poor agriculturist and therefore

learned trial Court ought to have granted remission for atleast

part of the penalty under sub-sec.(3) of Section 446 Cr.P.C.

Learned counsel has urged that penalty of Rs.40,000/- is

excessive and exorbitant in the facts and circumstances of the

case and therefore the same may be reduced in the interest of

justice. Lastly, learned counsel has urged that if the impugned

order to that extent is not interfered with, appellant would suffer

imprisonment for six months which in the backdrop of facts and

circumstances of the case is not commensurating with his alleged

lapses and default.

Per contra, learned Public Prosecutor has vehemently

opposed the appeal of the appellant. Learned Public Prosecutor

submits that the learned trial Court has exercised its discretion

under proviso to sub-sec.(2) of Section 446 Cr.P.C. appropriately

and as such a discretionary order warrants no interference in

exercise of appellate jurisdiction. Learned Public Prosecutor has

lastly urged that in the backdrop of peculiar facts and

circumstances of the instant case wherein appellant is prima facie

guilty of furnishing forged Jamabandi and a false affidavit before

the learned trial Court, no interference with the impugned order

even to the limited extent of remission in penalty is warranted.

I have heard learned counsel for the parties and perused the

impugned order.

While it is true that appellant stood surety for main accused

Bikar Singh and he has not been able to produce the accused

before Court but then while imposing penalty under sub-sec.(1) of

Section 446 Cr.P.C. the Court is required to see bona fide of the

surety and normally in such matters a benevolent view is

desirable. Although as a surety appellant was duty bound to

produce accused before the learned trial Court on each and every

date of hearing but any sort of omission in this behalf by the

surety cannot be viewed as an act of defiance in judicial process.

For imposition of harsh penalty under Section 446 Cr.P.C., the

Court is required to see as to whether surety has connived with

the accused or had remote scant that the accused would abscond

after release on bail. Otherwise, it is expected of the Court to take

a benevolent view while imposing penalty. Be that as it may, if the

impugned order is examined threadbare, then it would ipso facto

reveal that while quantifying the amount of penalty against

appellant, the learned trial Court has not taken into account the

relevant factors viz., connivance of the appellant with the accused

or the fact that it was within his knowledge that accused would

abscond after availing bail, rather the Court was impressed by the

fact that appellant has furnished fake Jamabandi for showing his

financial status and furnishing false affidavit. I am at loss to say

that if the appellant has committed any crime then for that the

Court has already ordered registration of FIR and as such the

same cannot be taken as a plausible ground for imposing

maximum penalty againt him. Indisputably, appellate jurisdiction

can be exercised by this Court for remission of penalty wholly or in

part and in the instant case looking to the penury condition of the

appellant it is desirable to grant remission in penalty imposed by

the learned trial Court in part.

This Court in Moola Ram Vs. State of Rajasthan [1982 Cr.L.J.

2333 (Raj.)] has observed that even after passing the final orders

and before recovery of whole amount Court under Section 446(3)

Cr.P.C. may grant remission of any portion of penalty. The Court

held:

"Judged from this background, the order under appeal passed by the learned Sessions Judge, Bikaner, is not sustainable in the eye of law, because he was empowered to exercise his discretion in the matter under Sub-section (3) of

Section 446 Cr. P.C. even after the final order directing realisation of the entire penalty under the bond was passed by him on July 3, 1976.

Supreme Court, in Mohammed Kunju Vs. State of Karnataka

[AIR 2000 (SC) 6], while considering case of a foreign national,

allowed remission in penalty amount Rs.25,000/- reducing it to

Rs.5,000/- only sans allegations of collusion/connivance. The

Court held:

"Lastly, learned Counsel made a plea for remission of the penalty. No doubt Section 446(3) of the Code empowers the court to grant such remission. It is within the discretion of the court to grant remission and to decide the extent of the remission. Such a discretion must be exercised judicially and for good reasons. Learned Counsel cited the decisions of this Court in Madhu Limaye v. Metropolitan Magistrate and Ors . ( : 1984 Supp. SCC 699). A three Judge Bench of this Court considered the plea advanced by a surety who was proceeded against as the accused some foreign nationals- escaped from India. They were students charged with offences of "trivial nature" in 16 cases altogether. This Court held that in such circumstances "the ends of justice will be met by imposing a token penalty of Rs. 100". In the present case though the offences charged against the foreign national are not trivial they are nevertheless not very serious comparatively. The accused slipped out of the country without anybody''s knowledge and thereby rendered himself beyond the reach of the Appellant. The court could have imposed the condition to surrender his passport as a measure to prevent him to escape out of India. There is no allegation that the Appellant had any remote scent that the accused was preparing to escape from India, nor that he had connived with the accused jumping out the bail. In the above circumstances we are of the view that some remission can be granted to the Appellants. To meet the ends of justice a remission is granted to the extent that each Appellant need pay Rs. 5,000/- as penalty. If the Appellants have already paid any amount in

the excess portion from the court concerned. Appeals are disposed of accordingly."

In view of foregoing discussion, appeal of the appellant is

allowed in part and the impugned order to the extent it has

imposed penalty of Rs.40,000/- against the appellant and in

default of payment of same sentencing him to undergo six

months'' civil imprisonment, is altered and modified by

reduction/remission of penalty to Rs.10,000/-. The appellant is

directed to deposit a sum of Rs.10,000/- within seven days from

the date of receipt of certified copy of this order before the

learned trial court and upon deposition of the said amount he may

be released forthwith. It is needless to observe that rest of the

order, i.e., registration of FIR against the appellant is not being

interfered with and further action pursuant thereto shall continue

in accordance with law.