IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.145 of 2005 Darshnu & Ors. .…. Appellants Versus State of Uttaranchal …………… Respondent August 20, 2009 Mr. Lokendra Dobhal, Advocate for the appellants. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 449 (ii) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the order dated 9.8.2005 passed by the Sessions Judge, Tehri Garhwal in Special Sessions Trial No. 4 of 2003, State v. Hari Singh & Anr. 2. Facts, in brief, are that the appellants stood as sureties for bailing out the accused Hari Singh and Sri Lal. The accused are under trial in case crime no.2 of 2003 for the offence under Section 8/20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’), Sessions Trial No. 4/2003 which is pending before the Sessions Judge, Tehri Garhwal. Appellant no. 1 Darshanu and one Balbir Singh (now deceased) were the sureties of accused Hari Singh, whereas appellants no. 2 & 3, viz., Jagdish and Ashutosh Shukla were the sureties of accused Sri Lal. When released from the jail on bail, the accused jumped the bail with the result that the sureties/appellants are now in jeopardy. When the accused failed to be present in the court and efforts by the trial court to get the presence of the accused also failed, then notices were issued to the appellants to produce the accused in court. When the appellants/sureties failed to produce the accused in the court, the criminal court proceeded against them for failure 2 to produce the accused in court and each of the appellants were ordered to pay the amount mentioned in the surety bonds vide order dated 9.8.2005 passed by the Sessions Judge, Tehri Garhwal. 3. In the proceedings during the trial in Sessions Trial No.4/2003, charge was framed on 30.9.2003 against the accused Hari Singh and Sri Lal and 4.11.2003 was fixed for prosecution evidence. Thereafter 2.12.2003, 26.12.2003, 9.1.2004, 12.2.2004, 12.3.2004, 12.4.2004, 14.5.2004, 11.6.2004, 15.7.2004, 17.8.2004, 27.9.2004, 26.10.2004, 18.11.2004, 1.12.2004. The dates 18.12.2004, 13.1.2005, 16.2.2005, 15.3.2005 was fixed for evidence and on 15.3.2005 after examining PW1, PW2 and PW3, the prosecution evidence was closed. On all the aforesaid dates, only on 14.5.2004, both the accused were present in the court and on 18.11.2004, only one accused Hari Singh was present in the court and on rest of the dates their personal appearance was exempted through the counsel. 4. After closing the evidence on 15.3.2005, the case was fixed for recording the statements of the accused under Section 313 CrPC on 28.3.2005, but the accused did not appear in the court on the date fixed and their personal appearance was again exempted through the counsel and thereafter case was posted for 8.4.2005. 5. Thereafter the case was posted for 30.4.2005, 11.5.2005, 25.5.2005, 4.6.2005 and 21.6.2005 for recording the statements under Section 313 Cr PC but on all the dates, personal appearance of the accused was exempted through counsel and on 21.6.2005 last opportunity was given to the accused to be present in the Court on 30.6.2005 and it was also ordered that if they would not be present on that date their bonds will be treated as cancelled. On the next date i.e. on 30.6.2005 the accused were not present in 3 the Court. Hence the Court issued non-bailable warrant against them as well as notices to the sureties and the case was posted for 26.7.2005. On 26.7.2005 also the accused did not appear before the Court and the case was posted for 9.8.2005 on which date only Jagdish appellant no. 2, surety of accused Srilal appeared before the Court. Rest of the sureties did not appear despite service. Balbir, one of the sureties of accused Hari Singh was reported to be died. When after the service, sureties to the accused neither appeared themselves nor produced the accused before the Court and no reasonable explanation was furnished, the Court ordered for forfeiture of the amount of surety bonds of Rs.30,000/- each in favour of the Government and passed the order for recovery of the aforesaid amount from the sureties vide order dated 9.8.2005. N.B.Ws were also issued against the accused and process under Section 82/83 CrPC was also ordered. Against the said order dated 9.8.2005 the appellants have preferred this appeal. 6. Heard learned counsel for the parties and perused the trial court record. 7. A perusal of the trial court record reveals that almost twenty dates were fixed as discussed above for prosecution evidence and only on one date i.e. on 14.5.2004 the accused were present in the court and on 18.11.2004 only accused Hari Singh was present and on rest of the dates personal appearance of the accused was exempted through counsel. Therefore, the prosecution evidence was closed and the case was fixed for recording the statement under Section 313 CrPC. For that also, eight dates were fixed but the accused was not present even on single date for recording statement under Section 313 CrPC, then the Court issued N.B.Ws against the accused on 30.6.2005 and notice to the sureties. After receiving the notice the sureties/appellants failed to produce the accused before the Court then vide order dated 4 9.8.2005 the court ordered for forfeiture of surety bonds amount as discussed above. 8. In the facts and circumstances of the case narrated above, I do not find any irregularity or illegality in the order dated 9.8.2005 of the trial court and it requires no interference by this Court. Learned counsel for the appellants also fairly conceded that the impugned order dated 9.8.2005 of the trial court is fair but he submitted that appellants’ financial condition is very poor and they are agriculturalist who hardly meet their two ends meal and, therefore, looking to their poor financial condition the amount of bonds be remitted. 9. I find substance in the submission for the learned counsel for the appellants. In my opinion, ends of justice would be met if the amount of thirty thousand of each of the bonds of the appellants is remitted and only rupees twenty thousand is recovered instead of rupees thirty thousand. Prayer to this extent is allowed accordingly. 10. For the reasons recorded above appeal is partly allowed. The amount of each of the bonds of thirty thousand is remitted to Rupees twenty thousand and two months’ time is allowed to each of the appellant to deposit the aforesaid money and if the money is not deposited within the said time the trial court may proceed to recover the amount. Impugned order dated 9.8.2005 passed by the Sessions Judge, Tehri Garhwal is modified to the extent indicated above. 11. Let the lower court record be sent back. (Dharam Veer, J.) 20.8.2009 PRABODH