Crl. Appeal No.583-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.583-SB of 2004 Date of Decision : February 20, 2008 Karnail Singh S/o Makhan Singh, ....Appellant R/o Village Pilkhani, P.S. Mullana, District Ambala. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Kapil Aggarwal, Advocate, for the appellant. Mr. Kartar Singh, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the order dated 5.3.2004 rendered by the Court of Special Judge, Ambala, vide which Karnail Singh S/o Makhan Singh, R/o Village Pilkhani, P.S. Mullana, District Ambala, who stood surety for Chhotey Lal S/o Mistri Lal, in the sum of Rs.50,000/-, in case FIR No.84, dated 15.3.2003, under Section 20-B of the NDPS Act, P.S. GRP Ambala Cantt, was imposed penalty of Rs.50,000/-. 2. The facts, in brief, are that Karnail Singh S/o Makhan Singh, R/o Village Pilkhani, P.S. Mullana, District Ambala, stood surety on 13.6.2003, for Chhotey Lal S/o Mistri Lal R/o Village Banswara, P.S.Choghar Dita, District Madhubani (Bihar), in the aforesaid case, in the sum of Rs.50,000/-, undertaking to produce him, on each and every date of hearing, and on his failure to do so, to pay a sum of Rs.50,000/- to the State of Haryana. 3. Chhotey Lal, accused, absented from the Court of Special Judge, Ambala on 19.9.2003, as a result whereof, his personal bond, and the surety bond of Karnail Singh, surety, were forefeited to the State of Haryana, vide order of the even date. Show Cause Notice was issued to the surety, to explain, Crl. Appeal No.583-SB of 2004 2 as to why the amount of forfeited surety bond, be not recovered from him, as penalty. Despite receipt of notice, the surety did not appear. Under these circumstances, the Court of Special Judge, Ambala, presumed that the surety did not want to say anything, and imposed penalty of Rs.50,000/- upon him, vide order dated 5.3.2004. It is further evident that after passing the order aforesaid, the surety put in appearance, and made a statement, that he be granted some-time, to locate the accused, and produce him, in the aforesaid case, but his such request, was declined by the Court, vide order dated 5.3.2004. 4. Feeling aggrieved, against the order dated 5.3.2004, rendered by the Court of Special Judge, Ambala, the instant appeal was filed by the appellant/surety. 5. I have heard the learned Counsel for the appellant/surety, and have gone through the record of the case, carefully. 6. The Counsel for the appellant, at the very outset, submitted that the trial Court, without taking into the facts and circumstances of the case, imposed a very harsh penalty, upon the appellant, without affording him an opportunity of being heard. He further submitted that, it was not such a case, in which such a harsh penalty should have been imposed, upon the appellant, as there was nothing, on the record, that the appellant was instrumental in the abscondance of the accused, from the proceedings of the trial Court, or he acted in concert with him, or connived with him, so as to make him flee from justice. It may be stated here, that after the forfeiture of the personal bond of the accused, and surety bond of the surety, when the former absented, from the Court, show cause notice was issued to the appellant by the Court of Special Judge, Ambala, to explain, as to why the amount of surety, as penalty be not imposed upon him. Since, the appellant failed to respond to such a show cause notice, in time, before the Court of Special Judge, Ambala, it could not be said that he was not afforded an opportunity, to present his case. However, as stated Crl. Appeal No.583-SB of 2004 3 above, after the order dated 5.3.2004, impugned in this appeal, was passed, the surety apparently appeared before the Court and asked for a date for the production of accused, but his request was declined, in that regard. 7. With a view to find out, as to whether, the appellant made efforts to produce the accused, in the Court, a report was called for from the District & Sessions Judge, Ambala, as to whether the accused had already appeared or had been declared proclaimed offender, in the aforesaid case, if so, on which date. A report was received from the District & Sessions Judge, Ambala, vide letter No.658 dated 7.2.2008, alongwith which a communication from Mr. A.K.Verma, Special Judge, Ambala, bearing No.41 dated 7.2.2008, was attached. From these documents, it was evident that after the absence of the accused, in the aforesaid case on 19.9.2003, he was declared proclaimed offender, vide order dated 6.8.2004. It was further clarified, in the aforesaid communications, that vide order dated 5.10.2004 passed by the then Special Judge, Ambala, the file was ordered to be consigned to the record room. The fact remains that till date, the accused has not been arrested in the aforesaid case. Under these circumstances, it can be said that the surety did not make any effort, to locate the accused and produce him, in the Court, may be due to the circumstances beyond its control. 8. Now coming to the factum, as to whether, the penalty imposed upon the appellant/surety to the tune of Rs.50,000/- i.e. total amount of the forfeited surety bond was harsh or not. It may be stated here, that the same did not commensurate with the mistake committed by the surety. The mere fact that he immediately after passing the impugned order, made a request to the Court, that he be afforded an opportunity to locate the accused, went a long way to prove his bonafides. This also went a long way to prove that he was not instrumental in the abscondance of the accused. This also clearly proved that he was not in connivance with the accused, so as to make his escape easy. There Crl. Appeal No.583-SB of 2004 4 was no allegation against the surety that he had even remote connection with the escape of the accused. In these circumstances, the penalty imposed upon the surety could certainly be said to be very harsh. In Mohammed Kunju Vs. State of Karnataka 1999 (4) RCR (Criminal) 726 (S.C.), the accused was released, on bail, in the sum of Rs.25,000/-, with two sureties, in the like amount, for the offences punishable under Sections 471 and 466 IPC. Ultimately, the accused escaped from India, and thus fled from the portals of justice. The Court concerned then forfeited the personal bond of the accused and the surety bonds of the sureties. Ultimately, penalty in the sum of Rs.25,000/- on each of the sureties, was imposed by the Court, as the accused never put in appearance, in the Court, after he jumped the bail. The order was challenged, in the High Court, but with no success. Ultimately, criminal appeal Nos.1133-34 of 1999 were filed, in the Apex Court. The Apex Court reduced the penalty imposed upon the sureties to Rs.5000/- each, holding that there was no allegation, that the sureties, at any time, had a scent that the accused was preparing to escape from India, nor there was any concert between the accused, and the sureties, in making their escape easy, from India to foreign Country, nor the sureties connived with the accused to ensure that he fled from the portals of justice. Not only this, in Madhu Limaye Vs. Metropolitan Magistrate and ors. 1984 Supplementary SCC 699, a decision rendered by a three Judge Bench of the Apex Court, 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. The Apex Court held that, in such circumstances, “the ends of justice” will be met by imposing a token penalty of Rs.100. In the instant case, no doubt, the charge against the accused, could not said to be trivial, the same is nevertheless not very serious comparatively. In the instant case, the accused did not jump the bail, and went to foreign country, but he being a resident of Bihar, must be in Crl. Appeal No.583-SB of 2004 5 his house, or some other place, in the State. The accused, in the instant case, jumped the bail, without the knowledge of the surety, and, thus, rendered himself beyond his reach. The facts of the aforesaid authorities, are also similar to the facts of the present case. The principle of law, laid down, in the aforesaid authorities, can be applied to the facts of the present case, advantageously. Keeping in view the facts and circumstances of the case, the bonafides of the appellant/surety making an offer to locate the accused ; that there was no allegation that he was having a scent that the accused was preparing to abscond, and nothing was brought, on the record, that he was conniving with him or was in concert with him, so as to make his escape easy, it is considered to be a fit case, in which the penalty sho0uld be reduced from Rs.50,000/- to Rs.20,000/-. The submission of the Counsel for the appellant, to this extent, is accepted. 9. For the reasons recorded hereinbefore, the appeal is partly accepted. The penalty of Rs.50,000/- imposed upon the appellant/surety, by the Court of Special Judge, Ambala, is reduced to Rs.20,000/-. Necessary steps shall be taken by the Court concerned, to effect recovery of the amount, as per the provisions of Code of Criminal Procedure, with due promptitude. It be also intimated, as to what effective proceedings were initiated, regarding the recovery of amount of forfeited personal bond, of the accused, and whether his property under Section 83 Cr.P.C. was attached, and put to auction, in accordance with law. February 20, 2008 (SHAM SUNDER) Vimal JUDGE