Punjab-Haryana High Court
Dalvir vs State Of Haryana on 1 February, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
Crl. Misc. No. M-15296 of 2012
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Misc. No. M-15296 of 2012
Date of decision: 01.02.2013
Dalvir
....Petitioner
Versus
State of Haryana
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: - Mr. Rajesh Arora, Advocate, for the petitioner.
Mr. Sandeep S. Mann, Sr. DAG, Haryana.
*****
PARAMJEET SINGH, J. (ORAL)
The petitioner has approached this Court by way of instant petition under Section 482 of the Code of Criminal Procedure (for short 'Cr.P.C.') for quashing of the order dated 24.11.2010 (Annexure P-1), passed by the learned District Magistrate, Gurgaon, whereby the surety amount of ` 2,00,000/- (Rupees two lacs only) was ordered to be forfeited to the State. The petitioner stood surety in a sum of ` 2,00,000/- (Rupees two lacs only) for release of one convict Manoj Kumar on parole. It has been further ordered that amount be recovered from the petitioner as arrears of land revenue.
Notice of motion was issued.
Learned counsel for the petitioner submits that in the absence of any connivance between the petitioner and the convict, who jumped parole and did not surrender, the order passed against the petitioner is very harsh and is not sustainable in law, as such.
Learned counsel for the petitioner relies upon the judgment of Crl. Misc. No. M-15296 of 2012 -2- the Hon'ble Supreme Court in Mohammaed Kunju versus State of Karnataka 1994 (4) RCR (Criminal) 726 and also of this Court in Harbhajan Singh versus State of Punjab 2008 (4) R.C.R. (criminal)
410. He prays for acceptance of the petition and quashing of the impugned order dated 24.11.2010.
Per contra, learned counsel for the State vehemently contended that there is no illegality in the order, passed by the District Magistrate, Gurgaon. He further submits that the convict came to be arrested by the police and another FIR was lodged against him under the Arms Act for which he is being proceeded against, in accordance with law. He concluded by submitting that since the conduct of the petitioner is wholly irresponsible, he must suffer for the laxity on his part.
Having heard the learned counsel for the parties and after going through the record of the case, this Court is of the considered opinion that the impugned order dated 24.11.2010, passed by the learned District Magistrate, Gurgaon, is undoubtedly harsh on the face of it, particularly when there is no allegation on record about connivance of petitioner with the convict.
Judgment rendered by the Hon'ble Supreme Court in Mohammed Kunju's case (supra) applies with full force in the present case.
The relevant observations made by the Hon'ble Supreme Court, particularly in paras 13 to 15 thereof, which can be gainfully followed in this case, read as under:
"13. Learned counsel then contended that as the bond was executed by the accused with two sureties the upper Crl. Misc. No. M-15296 of 2012 -3- limit of the amount which the court can realise from both the sureties together cannot exceed the amount which the accused has stated in his bond. In other words, when the accused executed a bond for Rs. 25,000 the sureties can be made liable to pay the said amount either jointly or severally, according to the counsel. The acceptability of the aforesaid contention depends upon the wording of the bond executed by the appellants. There was a controversy earlier as to whether the bond is a single one supported by two sureties or the bond executed by a surety is different from that of the accused. The controversy stands settled now by the decision of this Court in Ram Lal v. State of U.P., AIR (1979) SC 1498. Their Lordships, after referring to the wording contained in Form No. 42 of Schedule V of the old Code of Criminal Procedure, 1898, have held thus :
"The undertaking to be given by the surety was to secure the attendance of the accused on every day of hearing and his appearance before the Court whenever called upon. The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused. The undertaking of the surety to secure the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon even if both the undertakings happened to be executed in the same document for the sake of convenience. Each undertaking being distinct could be separately enforced."
14. We have noticed that the wording in the corresponding Form in the new Code is Identical (vide Crl. Misc. No. M-15296 of 2012 -4- Form No. 45 in the second Schedule to the Code) and hence the same principle must follow in the present case also. Thus forfeiture of a bond would entail the penalty against each surety for the amount which he has undertaken in the bond executed by him. Both the sureties cannot claim to share the amount by half and half as each can be made liable to pay the amount of Rs. 25,000.
15. Lastly, learned counsel made a plea for remission of the penalty. No doubt Section 446(3) of the Code empowers the court to grant such remission. It is within the discretion of the court to grant remission and to decide the extent of the remission. Such a discretion must be exercised judicially and for good reasons. Learned counsel cited the decisions of this Court in Madhu Limaye v. Metropolitan Magistrate and Ors., [1984] Suppl. SCC 699, A three Judge Bench of this Court considered 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. This Court held that in such circumstances "the ends of justice will be met by imposing a token penalty of Rs. 100". In the present case, though the offences charged against the foreign national are not trivial they are nevertheless not very serious comparatively. The accused slipped out of the country without anybody's knowledge and thereby rendered himself beyond the reach of the appellant. The court could have imposed the condition to surrender his passport as a measure to prevent him to escape out of India. There is no allegation that the appellant had any remote scent that the accused was preparing to escape from India, nor that he had connived with the accused Crl. Misc. No. M-15296 of 2012 -5- jumping out the bail."
Coming to the facts of the present case, the impugned order dated 24.11.2010, passed by the learned District Magistrate, Gurgaon, would show that there was no allegation against the petitioner that he, as a matter of fact, instigated or helped the convict, in any manner, for not surrendering in time. Once any such allegation is conspicuously missing, the impugned order is not sustainable in law, as it is.
In the totality of the facts and circumstances of the present case, noted above, coupled with reasons aforementioned and to secure the ends of justice, the impugned order dated 24.11.2010 (Annexure P-
1), passed by the learned District Magistrate, Gurgaon, is ordered to be modified to the extent that instead of ` 2,00,000/- (Rupees two lacs only) to be forfeited to the State, amount is reduced to ` 20,000/- (Rupees twenty thousand only). The petitioner would pay ` 20,000/- (Rupees twenty thousand only).
Resultantly, striking a balance and also keeping in view the peculiar facts and circumstances of the present case, the instant petition is partly allowed. The impugned order is modified, accordingly.
The instant petition stands disposed of.
(Paramjeet Singh) Judge February 01, 2013 R.S.