HANUMAPPA S/O GANGAWWA KABBER Vs. STATE

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor.

(2.) The limited ground on which the present appeal is filed is, for a reduction of the penalty imposed on the appellant, in the following circumstances: The appellant had stood surety and had executed a bond for a sum of Rs.50,000.00 to secure the presence of the accused at the trial and accordingly, who was released in Special C.C. (NDPS) No.23/2005. It transpires that the accused had defaulted in his appearance and hence, the court below had passed an order for recovery of the entire amount covered under the bond, executed by the appellant and had issued a fee levy warrant, in spite of an application filed by the appellant under Sec. 446(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for brevity), seeking reduction of the penalty.

(3.) The learned counsel would submit that according to his instructions, the accused was long dead even before the alleged default in his appearance before the court below. But, the appellant was not in a position to substantiate the contention that the accused was dead, as he had died of a natural calamity and there was no ready evidence available of such death and disappearance of the accused and it is in that circumstance that the appellant has been mulcted with the penalty. He would further submit that the co-accused who were tried along with the accused in respect of whom he had stood surety, have been acquitted after a trial and therefore, the accused could not have been proceeded against, since the proceedings abated as against the deceased accused even as on the date of his default in his appearance. The present appellant who is a poor farmer, being mulcted with the penalty, results in grave injustice and therefore, seeks reduction of the penalty, if not a complete waiver of the same.