Sangat Ram vs State of H.P.

Kuldip Singh, J.—This appeal has been directed against the order dated 22.2.2011 passed by learned Addl. Sessions Judge, Mandi, imposing penalty of Rs. 1,00,000/- upon Appellant who stood surety to accused Philipox Livirio for Rs. 1,00,000/- for releasing him on bail in case arising out to FIR No. 73 of 2008 under Narcotic Drugs and Psychotropic and Substance Act, 1985 ( for short Act) registered at Police Station, Sadar, District Mandi and failed to produce the accused in the Court on 19.4.2010. The learned Court below issued non bailable warrants against the accused, personal and surety bonds furnished by the accused and surety were forfeited to the State of Himachal Pradesh, proceedings u/s 446 Code of Criminal Procedure were also initiated against accused and surety.

The Appellant filed reply dated 17.5.2010 stating therein that he stood surety of the accused as his son was in judicial custody in connection with a case u/s 302 IPC. He received Rs. 10,000/- for this purpose from accused in order to defend his son in the case. The Appellant is a poor man and was not in a position to contest the case of his son and to pay fee of his advocate. He searched the accused but despite his best efforts he could not produce the accused in the trial Court.

In the appeal impugned order has been assailed on the grounds that provisions of Sections 446, 447 Code of Criminal Procedure were ignored by the Court below. The reply of the Appellant has not been considered. The impugned order is harsh. No reasonable opportunity was given to the Appellant to defend his case by leading evidence. The personal and surety bonds were not furnished as per requirement of the law and therefore, Appellant could not be made liable to pay Rs. 1,00,000/- by way of penalty. The penalty imposed is excessive. The Appellant is an old man and is not keeping good health.

I have heard learned Counsel for the Appellant so also the learned Addl. Advocate General. The learned Counsel for the Appellant has confined his submissions on the point that the Appellant is the victim of the circumstances. He is an old and sick man. The son of the Appellant is facing case u/s 302 IPC. In order to defend the son, the Appellant took Rs. 10,000/- from the accused and stood surety. The accused is a foreign national, jumped the bail, despite best efforts the Appellant could not produce the accused in the Court. The penalty of Rs. 1,00,000/- imposed by the Court below is excessive. He has prayed for taking a lenient view. The learned Counsel for the Appellant has relied re In Re: K. Sivaswami Servai and Another, and K. Rafudin Ahmed Vs. State of Mysore, The learned Addl. Advocate General has supported the impugned order.

The Appellant stood surety to accused Philipox Livirio in case arising out of FIR No. 73 of 2008 under the Act in consideration of Rs. 10,000/- . He did not realize that to be a surety is not empty formality but a solemn undertaking to the Court to make available the accused for trial and to produce him in the Court. The Appellant in a way has duped the Court when he stood surety of accused with no intention to produce him in the Court to face trial, he was only concerned about the money which he received from accused in consideration for standing surety for him.

There is no material on record either on the file of the Court below or in the appeal that Appellant is suffering from some ailment. In the affidavit he has given his age 60 years which in the present context cannot be said to be an age where a person is incapable of performing his routine pursuits. The stand of the Appellant that he had no money to defend his son who is facing prosecution u/s 302 IPC and therefore, he accepted Rs. 10,000/- from accused Philipox Livirio for standing surety has also no force. Assuming that accused has no money to defend his son in the criminal case but the said son could be provided an advocate by way of legal aid or even by appointing Amicus Curiae. The act of the Appellant of accepting Rs. 10,000/- for standing surety can not be approved and Appellant cannot be excused. There is nothing on record that in Court below the Appellant wanted to produce evidence in support of his reply. The reply of Appellant has been considered by Court below.

It has been submitted by learned Counsel for the Appellant that impugned order is harsh and not in accordance with the facts and circumstances of the case. He has submitted for taking a lenient view. In re K. Sivaswami Servai (supra) it has been held that the forfeiture of bond is intended to serve a larger purpose than the mere realization of the amount undertaken to be under it. The liability under the surety bond can, therefore, be reduced in proper cases.

In K. Rafudin Ahmed (supra) it has been held that quantum of penalty must bear some correlation to the circumstances present in a case such as long continued absence of the accused, the nature of offence with which he is charged and the likelihood of the State being put to further exertion and expenses in apprehending the accused. The poverty or ability of the surety to pay the sum, may well in certain circumstances be also a relevant fact.

The accused Philipox Livirio is a foreign national, he has jumped the bail and possibility of his re-arrest is quite remote. He is facing prosecution under the Act. The message must go to such sureties who stand sureties after receiving amount from the accused and not by way of voluntary act, which is not in public interest. There is nothing on record regarding the means of the Appellant but for his bald assertion in the reply that he is a poor man. He has placed nothing on record in the appeal also in support of his plea of poverty. The Court below has exercised discretion in imposing penalty of Rs. 1,00,000/- after forfeiting surety bond. The discretion exercised by the Court below has not been established to be perverse or unreasonable keeping in view the facts and circumstances of the case. The Appellant has failed to make out a case for interference. There is no merit in the appeal.

In view of above discussion, appeal fails and is accordingly dismissed. In view of disposal of main appeal Cr.MP No. 254 of 2011 also disposed of.