Himachal Pradesh High Court
Siri Ram vs Udham Singh on 15 November, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 15th DAY OF NOVEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL APPEAL NO. 195 OF 2021
Between:
SIRI RAM,
S/O SH. MANGRU RAM,
R/O VPO KHOKHAN,
TEHSIL BHUNTER,
DISTRICT KULLU, H.P.
....APPELLANT
(BY MS. RAMESHWARI SHARMA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
(BY MR. SUDHIR BHATNAGAR,
ADDITIONAL ADVOCATE GENERAL, WITH
MR. NARENDER THAKUR, DEPUTY
ADVOCATE GENERAL)
....RESPONDENT
Whether approved for reporting?. Yes.
This appeal coming on for orders this day, the Court passed the following:
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2
JUDGMENT
.
Instant appeal filed under Section 449 Cr.PC, lays challenge to order dated 3.5.2018, passed by the learned Special Judge, -III, Mandi, H.P., in Session Trial No. 55/16/15, titled State of H.P. vs. Udham Singh and in respect of State v. Siri Ram (Annexure A-2), whereby penalty in the sum of Rs. 1,00,000/-, came to be imposed upon the appellant-surety on account of his failure to cause production of the accused in the court during trial.
2. Precisely, facts of the case as emerge from the record are that FIR No. 16 of 2015, dated 8.1.2015, under Section 20 of NDPS Act, was registered against the accused Udham Singh, at PS Sundernagar, District Mandi, H.P. Above named Udham Singh filed an application for grant of bail, wherein present appellant stood as surety. Since despite notice, accused Udham Singh failed to put in appearance in trial, vide order dated 20.2.2018, NBWs were issued against him returnable for 31.3.2018.
Besides above, court below while passing order dated 20.2.2018, forfeited the surety bonds furnished by the appellant surety and issued notice to him under Section 446 of the Cr.PC. On 31.3.2018, NBWs issued against the main accused Udham Singh were received back unexecuted, but appellant surety Siri Ram came present in person and undertook before ::: Downloaded on - 31/01/2022 23:17:08 :::CIS 3 the court below that he would cause presence of the accused on the next .
date of hearing. In the aforesaid background, matter came to be adjourned to 3.5.2018. On 3.5.2018, neither main accused nor the appellant surety came present and as such, court below ordered issuance of fresh NBWs against the accused and vide separate order dated 3.5.2018 (Annexure A-
2), imposed penalty in the sum of Rs. 1.00 lac, against the appellant surety and ordered for issuance of warrant of recovery under Section 421 of Cr.PC against the appellant surety. Subsequently, on 22.5.2018, appellant surety caused presence of the accused Udham Singh in the Court and thereafter, he was sent to judicial custody.
3. Being aggrieved and dis-satisfied with the aforesaid order dated 3.5.2018, passed by the court below, appellant surety approached this Court by way of Cr.MMO No. 414 of 2019, which came to be disposed of vide judgment dated 30.8.2019. In the afore judgment dated 30.8.2019, coordinate Bench of this court observed that once there is specific remedy provided under the criminal Procedure Code to file appeal under Section 449 against the order, if any, passed under Section 446 of Cr.PC, criminal revision petition is not maintainable. In the aforesaid backdrop, appellant surety approached this Court in the instant appeal, praying therein to quash and set-aside order dated 3.5.2018, whereby court below without ::: Downloaded on - 31/01/2022 23:17:08 :::CIS 4 affording opportunity of being heard to the appellant surety proceeded to .
impose penalty to the tune of Rs. 1.00 lac.
4. Having heard learned counsel for the parties and perused material available on record, this Court finds that there is no dispute that appellant surety stood surety for the main accused Udham Singh and accused despite notice, failed to put in appearance in trial. It is also not in dispute that appellant surety after having received notices in terms of order dated 20.2.2018, passed by the court below appeared in the court on 31.3.2018, and assured that on the next date of hearing i.e. 3.5.2018, he would cause presence of the main accused. On 3.5.2018, neither accused nor surety came present and as such, court below ordered for issuance of fresh NBWs against the accused for 18.6.2018. Vide separate order dated 3.5.2018, court proceeded to impose penalty to the tune of Rs. 1.00 lac on appellant surety on account of his failure to cause presence of the accused.
Once court below having taken note of the absence of the accused from the trial had already ordered for forfeiture of the surety bond furnished by the appellant surety vide order dated 20.2.2018, there was otherwise no occasion for the court below to call upon the appellant surety to cause presence of the accused, rather at that stage, court could only issue notice under Section 446 Cr.PC, which thereafter could only be decided after ::: Downloaded on - 31/01/2022 23:17:08 :::CIS 5 having received notice, if any, to the show-cause notice by the appellant .
surety. However, interestingly, in the case at hand, appellant surety despite forfeiture of bail bonds furnished by him appeared in the court below on 31.3.2018, and assured the court below to cause presence of the accused on 3.5.2018. No doubt, on 3.5.2018, neither accused came present nor appellant surety was able to cause his presence, but in that eventuality, court before passing any order with regard to imposition of penalty ought to have afforded opportunity of hearing to the appellant surety, especially when he pursuant to notice dated 20.2.2018 had come present on 3.5.2018. Interestingly, in the case at hand, on 22.5.2018, appellant surety caused presence of Udham Singh in the court and thereafter, he was sent to judicial custody. Zimini orders placed on record reveal that reply to notice under Section 446 of CrPC was filed and thereafter matter was ordered to be listed for consideration on 24.10.2018.
If it is so, it is not understood that how on 3.5.2018, court below without looking into reply, if any, filed by the appellant surety to the notice under Section 446 Cr.PC, could proceed to impose penalty to the tune of Rs. 1.00 lac. If court had imposed penalty of Rs. 1.00 lac on 3.5.2018, after having taken note of the absence of appellant surety despite his having received notice under Section 446 Cr.PC, proceedings under Section 446 Cr.PC ::: Downloaded on - 31/01/2022 23:17:08 :::CIS 6 would have come to an end on that day and thereafter there was no .
occasion, if any, for the court below to consider the reply, if any, filed by the appellant surety, to the notice under Section 446 Cr.PC. Zimini orders placed on record reveal that reply filed by the appellant surety, to the show cause notice under Section 446 Cr.PC, never came to be considered, rather matter remained pending and court below without affording an opportunity of being heard to the appellant surety, who subsequently, caused presence of the accused, proceeded to impose penalty upon him to the tune of Rs.
1.00 lac. Zimini orders clearly reveal that no final decision till date has been taken by the court below in the proceedings under Section 446 Cr.PC initiated against the appellant surety on account of his failure to cause presence of the accused. At this juncture, learned Additional Advocate General states that proceedings are pending for the reason that warrant of recovery under Section 421 Cr.PC is yet to be effected, but such plea of him cannot be accepted for the reason that order dated 19.9.2018 passed by the court below itself reveals that reply to the notice under Section 446 Cr.PC has been filed and thereafter, matter was ordered to be listed for consideration on 24.10.2018, meaning thereby, order dated 3.5.2018, imposing penalty to the tune of Rs. 1.00 lac filed by the court below was passed by the court without affording opportunity of hearing to the ::: Downloaded on - 31/01/2022 23:17:08 :::CIS 7 appellant surety. Leaving everything aside, this Court is of the view that .
once factum with regard to production of the accused by the appellant surety had come to the notice of the court below on 22.5.2018, it ought to have recalled order dated 3.5.2018, which otherwise is nonest and without jurisdiction for the reason that before passing of such order, no opportunity of hearing ever came to be afforded to the appellant surety.
5. Since pursuant to notices issued by the court below appellant surety had already caused appearance of the accused and accused is in judicial custody, there appears to be no justification to let the order dated 3.5.2018, sustain and as such, same is quashed and set-aside, as a consequence of which, subsequent proceedings of recovery are also quashed and set-aside. In the aforesaid terms, appeal is allowed and disposed of accordingly. Pending applications stand disposed of.
15th November, 2021 (Sandeep Sharma),
(manjit) Judge
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