Tara Dutt v. State of H.P

Hon(cid:146)ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ashok K. Tyagi, Advocate. For the Respondent : Mr. Anil Jaswal, Dy.Advocate General and Mr. R.P. Singh, Assistant Advocate General. ___________________________________________________________ V.K. Sharma, Judge (Oral). Heard. The appellant, who shall hereinafter be referred to as the surety, had stood surety for accused Sanjay Kumar, who was involved in commission of an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The surety bond was furnished at the initial stage at the time of release of the accused on bail on 29.9.2004. However, later on when the final report against the accused was submitted to the Court for trial, he could not be brought to justice for the reason that he had absconded and is still at large. It was in such circumstances that the proceedings under Section 446 of the Code of Criminal Procedure, 1973 (Cr.P.C.) were initiated against the surety.

On his failure to procure presence of the accused to stand trial, he has been imposed with a penalty of Rs. 25,000/-, which is equal to the entire amount of bond furnished by him. 1 Whether reporters of the local papers may be allowed to see the judgment?Yes. 2 By way of the present appeal, the surety in the first instance craves for acceptance of the appeal by remitting the penalty in toto and in the alternative, he prays for reduction thereof to a reasonable extent. In support of his submissions, he has placed reliance on Mohammed Kunju and another versus State of Karnataka (AIR 2000 Supreme Court 6) and Shyam Sunder Sharma Versus State (2006 Cri.L.J. 749). A perusal of the aforesaid authorities cited on behalf of the surety would go to show that in the former case though the bond amount was Rs. 25,000/- and the penalty was also equal to the entire amount of the bond, yet the Hon(cid:146)ble Supreme Court taking into consideration that the accused in that case was a foreigner and the accusation against him was not very serious; he had slipped out of country beyond reach of the surety; it was also found that the surety in that case had not connived with the accused in jumping over the bail, reduced the penalty from Rs.

25,000/- to Rs. 5,000/-. In the second case again, the amount of bond was Rs. 25,000/- and the penalty was also equal to the entire amount of the bond. In that case, there was only one default on the part of the accused and taking into consideration this aspect of the matter, penalty was reduced from Rs. 25,000/- to Rs. 2,000/-. However, in the present case, the accused, who is stated to be a native of the State of Bihar, is shown to have fled from justice soon after the judicial discretion of grant of bail was exercised by the learned trial Court in his favour. The surety, who is a local resident of District Sirmaur, is not in a position to advance any reasonable explanation for non-appearance of the accused except that he is resident of another State and beyond his reach. 3 The learned counsel for the surety further submits at the Bar that the surety is a poor person and imposition of penalty equal to the entire amount of bond is in a way quite unreasonable.