K S SHIVANNA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) HEARD the learned Counsel for the appellant. The appellant has challenged the order dated 29-11-2002 passed by the trial Court directing the appellant-surety to deposit a sum of Rs. 5,000/- in Court as penalty in default to issue FLW through the Superintendent of Police, Tumkur.

(2.) THE appellant stood surety for an accused charge-sheeted for the offence under Sections 376, 511 and 377, IPC, and has executed a personal bond for release of the accused on bail with guarantee that he will be appearing before the Court on the next dates without fail for a sum of Rs. 10,000/ -. It is seen that after releasing the accused on bail right from 8-5-2000, the accused has remained absconding and not available for the prosecution or trial in spite of taking coercive steps of issuing Non Bailable Warrant. As such the trial Court had to issue notice to the surety, who on appearance undertook to produce the accused but again in spite of giving sufficient time and opportunity, did not produce the accused before the Court. Hence, the Court was left with no other option but no forfeit the bail bond and the appellant/surety was called upon to pay the bond amount as penalty. But the surety also filed an application under Section 446 (3), Cr. P. C. , before the Court to remit some portion of the penalty amount and to enforce the payment in part only. Considering the facts and circumstances, the trial Court reduced the penalty practically to half of the personal bond executed by the appellant. Even this amount is now sought for modification by the surety in the present appeal.

(3.) RELYING upon the pronouncement of this Court in the case of K. Raffuddin Ahmed v. State of Mysore, 1973 Mys LJ 36 : (1973 Cri LJ 891), it is contended that the determination of such penalty by a Court of law must be on the basis of the application of the mind and the exercise of judicial discretion and that the quantum of penalty to be levied must bear some correlation to the circumstances present in the case. It is also submitted that the appellant is suffering from heart ailment and in spite of his best efforts, he is unable to produce the accused before the Court.