Allahabad High Court
Devendra And Another vs State Of U.P. on 11 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:16187 Court No. - 84 Case :- CRIMINAL APPEAL No. - 5934 of 2008 Appellant :- Devendra And Another Respondent :- State of U.P. Counsel for Appellant :- B.R. Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Nalin Kumar Srivastava,J.
1. Heard learned counsel for the appellants and learned A.G.A. for the State.
2. This appeal arises out of impugned judgement and order dated 04.08.2008 passed by learned Additional Sessions Judge, Court No.6, District Saharanpur directing the realization of the surety amount Rs.1,00,000/- (One Lakh Rupees) from both the appellants under Section 446 of Cr.P.C., Police Station Nanula, District Saharanpur.
3. In Sessions Trial No.39 of 2005 (State of U.P. Vs. Madan Mohan) under Sections 363, 366, 376 I.P.C., Police Station Nanula, District Saharanpur. The present appellants, Devendra and Baburam stood as surety for the accused Madan Mohan and he was released on bail. Subsequently, the said accused absconded and did not appear before the Court despite several punitive processes issued against him by the Court. The court proceeded with the matter and show cause notice was issued to the sureties/appellants and proceedings under Section 446 Cr.P.C. was initiated against the present appellants.
4. Subsequently, accused Madan Mohan was produced before the Court by the appellants and the trial proceeded ending into conviction of accused Madan Mohan. Criminal Appeal No.5269 of 2008 was preferred by the said convict, Madan Mohan but during proceeding of the appeal, he died and Criminal Appeal No.5269 of 2008 aforesaid was abated by the coordinate Bench of this Court vide order dated 02.02.2018. After producing accused, Madan Mohan, applications were moved by the appellants before the trial court to cancel the notice and recovery certificate issued by the court against the appellants and by way of two separate orders dated 04.08.2008, the applications moved by the present appellants were rejected by the trial court. Feeling aggrieved with the said order dated 04.08.2008, the present appeal has been preferred.
5. It is submitted by the learned counsel for the appellant that the appellants had absolutely no knowledge about the abscondence of accused, Madan Mohan and that is why, initially they made no attempt to produce the accused, Madan Mohan before the trial court, the fault committed by the appellants was not intentional or deliberate. No notice issued by the court was served upon the appellants and on an erroneous conclusion, the Court has directed for realization of surety amount of Rs.1,00,000/- from each of the appellants which is very excessive and harsh. It is next submitted that since no notice was received by the appellants, they could not file their reply to the show cause notice issued by the Court.
6. Learned A.G.A. opposed the appeal.
7. Before proceeding in this matter, it will be expedient in the interest of justice to go through the provisions contained under Section 446 Cr.P.C.:-
" (i) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
Explanation ___ A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred
(ii) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: [ Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.]
(iii) The Court may, [after recording its reasons for doing so], remit any portion of the penalty mentioned and enforce payment in part only."
(iv) ..........
(v) ..........
8. This is an admitted case that both the appellants stood as surety for the accused Madan Mohan, who subsequently absconded. It is also admitted that the absconder accused Madan Mohan was produced by the sureties/appellants before the Court and this fact finds place in the impugned order as well.
9. The learned trial court has opined that the recovery certificate has been issued against the appellants but prior to the actual recovery the accused was produced by them before the Court.
10. In Mohammed Kanju and another Vs. State of Karnatka AIR 2000 Supreme Court Page 6, it has been held that on forfeiture of the bond, the penalty against each surety for the amount which he has undertaken the bond executed by him.
11. In Istkar Vs. State of U.P. and another 2022 LiveLaw (SC) 1000, the Hon'ble Apex Court in para 13, which is relevant in the factual scenario of the case in hand, held like this:
" Further, Section 446 Cr.P.C. lays down the procedure for forfeiture of bond for appearance or for production of property and also for any other bond under the Code. The provision empowers the Court to call upon such person bound by the bond to pay penalty or to show cause as to why he should not pay the penalty. Sub-section(3) of Section 446 Cr.P.C. vests discretionary power to the Court to remit any portion of the penalty mentioned and enforce payment in part only, after recording its reasons for doing so. This clearly enunciates that even when a person fails to show sufficient cause as to forfeiture of the bond amount, the Court is not bound to direct payment or recovery of the entire bond amount. The Court can exercise its discretion and remit some portion of the bond owing to the nature of the offence, status and position of the person, and having regard to other facts and circumstances of the case or when the amount of bond is unduly excessive."
12. The present is a peculiar case. In this case, after abscondence of the accused Madan Mohan and after issuance of the notice to the sureties, the accused was not produced by them before the trial court and then when the notice sent by the Court to the surties was not responded by them, the bonds were forfeited and the recovery certificate was issued against the appellants. Subsequently, they produced the accused before the Court meaning thereby that prior to the actual recovery, the appellants had already produced the accused before the Court and another peculiar circumstance, arising out in this case is that after production of the accused before the trial court by the appellants, he was convicted and when the conviction was challenged before this Court by way of filing criminal appeal, he died during appeal, as submitted by the learned State Counsel. His appeal has been abated by the coordinate Bench of this Court. The Court is of the view that in these circumstances, the trial court should have been adopted a more liberal approach than was shown in the impugned order wherein the sureties/appellants were directed to deposit Rs.1,00,000/- in place of Rs.1,50,000/- which was the amount of surety bond. The Court cannot overlook this aspect of the matter also that the Sessions trial was registered in the year 2005 and the application of the appellants was rejected in the year 2008 by the impugned order. The sureties/appellants must be persons of very old age and the present appeal is pending since 2008 and already 16 years have been lapsed.
13. Section 446(3) Cr.P.C. empowers the Court to remit any portion of the penalty mentioned and enforce the payment in part only by a reasoned order.
14. Hence it is within the discretion of the Court to grant remission and also to decide as to what should be the extent of penalty than to impose the payment in part only. Needless to say, such discretion must be exercised judicially and for good reasons.
15. In Madhu Limaye. Vs. Metropolitan Magistrate [1984 Supp SCC 699: 1985 SCC (Cri) 148], a three-Judge Bench of Hon'ble Apex 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 "trival 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".
16. In Mohammed Kunju and another Vs. State of Karnataka 1999 (8) Supreme Court cases 660, the same view has been reiterated by the Hon'ble Apex Court.
17. So far as the present case is concerned, the learned trial court while rejecting the application of the appellants although adopted a liberal approach but undoubtedly, he should have adopted a more liberal approach in this matter. However since 16 years have already been passed after passing the impugned order, in my view, it will be expedient and in the interest of justice, if the amount of the surety bond i.e., Rs.1,50,000/- which was remitted upto Rs.1,00,000/- by the trial court should be remitted substantially and payment of Rs.5,000/- each should be enforced against the appellants.
18. In terms of the above, the appeal is partly allowed. The amount of Rs.1,00,000/- which is ordered to be deposited by the appellants by the trial court by the impugned order is reduced Rs.5,000/- each.
19. Let the copy of the judgment and order dated 04.08.2008 be sent to the court concerned for necessary compliance.
Order Date :- 11.1.2024 Shivangi