Criminal Appeal (SJ) No.163 of 1996 Against the order dated 25. 06. 1996 passed By the learned Sessions Judge, Darbhanga, In Sessions Trial No. 33 of 1989 Bindeshwar Thakur @ Bindeshwar Sharma, Son of Late Basudeo Thakur, resident of Village- Dhankaul, P.S. Jalley, District- Darbhanga. …………..Appellant Versus The State of Bihar …………….Respondents. For the Appellant/s : Mr. Manish Kumar No. 13, Amicus Curiae. For the State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD) Gopal Prasad,J. No one appeared on behalf of the appellant. Mr. Manish Kumar is ordered to be appeared in the appeal as Amicus Curiae. 2. Heard learned amicus curiae for the appellant and learned counsel for the State. 3. This appeal is directed against the order dated 25. 06. 1996 passed in Sessions Trial No. 33 of 1989, by which it has been ordered for forfeiting the surety amount of Rs. 10,000/- (Ten thousand) from the appellant against the bail bond executed by appellant as bailor for accused- Shivan Thakur in the said Sessions Trial and has ordered the appellant, Bindeshwar Thakur to deposit Rs.10,000/- 2 by 24. 07. 1996, failing which money shall be realised by adopting legal recourse. 4. On perusal of the record, it appears that appellant was surety for bailing out accused Shivan Thakur in the said Sessions Trial No. 33 of 1989 as the Shivan Thakur was an accused for offence under Sections 302/201 of the Indian Penal Code. Since Shivan Thakur did not appear in the case and his bail bond was cancelled on 28. 05. 1994 and the bailor was directed by order dated 06. 04. 1996 to produce the accused in the court on the date fixed or to show cause as to why the amount of bail should not be forfeited. 5. The appellant failed to produce the impugned order passed and taken plea that bail bond was given in the court of the Magistrate and the surety had undertaken to produce the accused in that court hence the same bail bond can not be invoked in the court of Sessions, after commitment. However, the said plea of the appellant was rejected by the court below in view of the fact that the appellant himself had undertaken in the bail bond to fulfill his liability as security in the court of sessions if the case was committed to the Court of Sessions and ordered that 3 surety amount of Rs. 10,000/- is forfeited with a direction to deposit the amount by 24.07. 2996 failing which money shall be realised by adopting legal recourse and hence against the impugned order the appeal has been preferred. 6. Learned Amicus Curiae has submitted two fold submissions and has contended that the appellant can not be fasten with liability for the surety amount of the bail bond executed by the appellant much earlier at the stage of investigation. Second submission is that since the appellant is a very poor person having only ten dhoors of land and he has no movable or immovable property and produced a certificate as Annexure-3 in his memo of appeal so a lenient view be taken for remission of the amount under Section 446 (3) of Cr.P.C. and has placed reliance in para 15 of the decision reported in Supreme Court Case (1999) 8 page 660. 7. Learned counsel for the State however, opposed the submissions made by the appellant and contended that the appellant was required to find out the accused and attempt for his arrest and not having done, hence is required to pay penalty, however, conceded that court may consider the remission of fine under the facts 4 and circumstance of the case. 8. However, taking into consideration of the facts and circumstances and impugned order, the surety amount has been forfeited and the appellant was ordered to pay Rs. 10,000/- in view of the fact that accused slip out the bail and learned Sessions Judge having cancelled the bond and issue show cause notice to the bailor and thereafter, passed impugned order directing the appellant to pay Rs. 10,000/- and hence order within Section 446 of Cr.P.C. 9. However so far first point is concern that the appellant was bailor/security before the Magistrate, so he is not liable in Court of Sessions and was absolve of his liability in the Court of Sessions. There is no merit in the submissions both in view of fact that the appellant in bail bond undertaken his liability as security in Court of Sessions and otherwise also the security of bailor stands till withdrawn. Hence I do not find any merit with regard to the first point raised that appellant is not liable for surety amount. Abscondance of the accused can well be proceeded against under Section 446 Cr.P.C. 10. However, the second point is concerned regarding remission having regard to the fact that 5 bailor/surety is a landless persons having only 10 dhoor of land, but at the same time he is bailor/surety against an accused for offence under Sections 302/201 and accused has slipped out and in his show cause he has alleged that accused has flee away to Nepal and he is unable to catch hold of the accused or produce in court. 11. Having regard to the facts and circumstances the accused is beyond reachable of the appellant to catch hold by him and produce before the court as such circumstances, suggest some remission required to be granted to the appellant and hence to meet the ends of justice a remission is granted to the extent that appellant is required to pay only Rs. 2,000/- as penalty. If the appellant has already paid any amount in excess thereof he can apply and get refund of the excess portion from the court concerned. Appeal is disposed of accordingly. 12. Mr. Manish Kumar, assisted the Court as Amicus Curiae and hence Legal Service Authority shall proceed for his remuneration in this regard for his assistance. Patna High Court. The 28 th June, 2011. NAFR/m.p. ( Gopal Prasad, J.) 6