Shaligram vs State

Nevaskar, J.—The accused Shaligram was being prosecuted u/s 353 I.P.C. before the Sub-Divisional Magistrate Sitamau. He had submitted a personal recognizance bond for remaining present on each date of hearing that would be fixed in the case and one Naharji had stood surety in person for that purpose. On 19th December, 1953 the accused was absent. A telegram was received by the Court on behalf of the accused mentioning the fact that his son was seriously ill at Kankroli and that he was unable to attend the Court for that reason. The Court thereupon fixed the case for hearing on 23rd December, 1953 and informed the date fixed to his counsel who was present before the Court, On 23rd December, 1953 too the accused remained absent, the Court thereupon directed issue of notice both to the accused and the surety to show cause on 30.12.53 why the amount of Rs. 200 mentioned in bond of each of them should not be recovered. In pursuance of this notice, surety Naharji appeared. He gave a reply stating that the accused could not remain present on the earlier date, as his son was seriously ill at Kankroli. The accused did not submit any reply. The case was fixed for evidence on the reply submitted by the surety. The surety adduced no evidence and the Court thereupon directed the recovery of the entire amount. It may be stated here that on 30th December 1953 the accused did remain present before the Magistrate. Against the order of the Magistrate directing the recovery of the entire amount from the accused as well as from the surety, an appeal was preferred,; which however proved unsuccessful. Thereafter a petition for revision was filed in the Court of Sessions Judge, which was rejected. The present revision-application is thereupon filed by both the accused as well as the surety.

Mr. Malgawa, who appears for the petitioners, contended that he wishes to assail only the propriety of the order for recovery of the entire amount of the bonds, in view of certain circumstances appearing on record It was pointed out by him that the accused appeared immediately after the order was passed directing issue of the notice and the surety had acted without any negligence. He also contended that the accused too had not acted irresponsibly and that although, there was no ground to the extent of saying that no part of the penalty should be realised from the accused and the surety, he would pray that the amount should be substantially reduced. The learned counsel relied upon the decision reported in AIR 1933 42 (Lahore) (Jora Singh vs. Emperor) in support of his contention. In that case Shadilal C.J. observed that where the accused is arrested and the surety is proved to be unable to pay the forfeited amount which in the opinion of the High Court is excessive, the amount can be reduced under the orders of the High Court.

Mr. J.D. Patel, learned Deputy Government Advocate, who appeared on behalf of the State contended that so far as the accused is concerned, there is no justification for reducing the amount of the bond, The accused remained absent on 19th December 1953, he was required to remain present on 23rd December, 1953. On that date he too remained absent. On show cause notice being given he did not come forward to offer an explanation for his previous absence. In this state of facts, there is no justification for reduction of amount of penalty in his case merely because, he was present on 30th December 1953. AS regards the surety, he brought to my notice, the decision of the Bombay High Court in Balraj S. Kapoor vs. State Balraj S. Kapoor Vs. The State of Bombay, , where the learned Judge had taken the view that where the accused is subsequently arrested for the forfeiture which had occurred of a bond and the surety did not act irresponsibly or is not negligent or does not connive at the absence of the accused, the Court may direct reduction of the part of the amount of the bond instead of directing the recovery of the full amount. In my opinion, the contentions raised by the Deputy Government Advocate, Mr. Patel, is well founded. In view of the absence of the accused on two consecutive dates and his failure to make out proper reason for such absence, there is no justification to interfere with the order of the Court of the trying Magistrate directing the recovery of the amount of bond executed by him. However, and in as much as, the surety not only procured the presence of the accused immediately on receipt of the show cause notice but is also not show to be negligent or irresponsible, the amount of the bond recoverable from him be reduced to Rs. 100.

The result is that this revision-petition is pardy allowed. The order passed against the surety directing recovery of the bond of Rs. 200 modified and it is ordered that instead of Rs. 200, Rs. 100 should be recovered from the surety, AS regards the accused, there is no reason to interfere with the order of the Magistrate as regards him. The petition concerning him is dismissed.