1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Hukam Singh Vs. State of Rajasthan (S.B. Criminal Appeal No.613/2010) S.B. Criminal Appeal Under Section 374 Cr.P.C. Date of Judgment: December 15, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Ambrish Vashishtha, for the appellant. Mr.Javed Chaudhary, Public Prosecutor. Aggrieved by the order dated 7.5.2010, passed by the Additional District Judge No.1, Deeg (Bharatpur), whereby the learned Judge has passed an order for recovery of the surety amount to the tune of Rs.20,000/- from the appellant in the proceedings under Section 446 Cr.P.C., the appellant has approached this Court. It is the case of the appellant that he had stood as surety for one Rakesh Jaiswal, who was facing trial in Sessions Case No.330/2009, before the Additional District and Sessions Judge No.1, Deeg (Bharatpur). As a surety, the appellant had given a surety of Rs.20,000/-. However, during the course of trial Mr. Rakesh Jaiswal jumped the bail. Therefore, proceedings under Section 446 2 Cr.P.C. were initiated against the appellant vide order dated 7.5.2010. The learned trial court directed the Tehsildar, Kumher to attach and auction the property of the appellant in order to recover the surety amount. Eventually the amount of Rs.20,000/- was realised. Therefore, this petition for reduction in the amount of surety. Mr. Ambrish Vashishtha, the learned counsel for the appellant, contended that on 6.10.2010, the Tehsildar, Kumher has deposited the surety amount before the trial court. However, considering the fact that the petitioner happens to be an eighty-eight years old man, who is not even physically fit and is suffering from dire poverty, the learned counsel pleads that the surety amount so forfeited should be reduced by this Court. In order to buttress his contention that the surety amount so realized should be reduced, the learned counsel has relied upon the case of Mohammed Kunju and Anr. Vs. State of Karnataka [(1999) 8 SCC 660] and on the case of Puspendra Meena Vs. State of Rajendra [S.B. Criminal Appeal No.429/2009 decided on 7th April, 2010]. On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has contended that since the appellant had given a surety of 3 Rs.20,000/-, since the accused, Rakesh Jaiswal, had jumped the bail, the learned Court was justified in realizing the surety amount. Therefore, the amount should not be reduced by this Court. It is a settled a principle that “justice should be tempered with mercy”. Before the surety amount is forfeited by a Court, the Court should be alive to the financial condition of the surety. Considering the fact that the petitioner happens to be an eighty-eight years old man, who is physically unfit, and who is suffering from dire poverty, this Court directs that the surety amount forfeited from the appellant should be reduced to merely Rs.3,000/-. Since Rs.20,000/- have been forfeited, the amount of Rs.17,000/- shall be returned to the appellant forthwith. With these directions, this appeal is, hereby, allowed. (R.S. CHAUHAN) J. Manoj solanki