SHALIGRAM Vs. STATE

JUDGEMENT

(1.) THE accused Shaligram was being prosecuted under Section 353 I.P.C. before the Sub -Divisional Magistrate Sitamau. He had submitted a personal recognizance bond for remaining present on each date of hearing that would be fixed in the case and one Naharji had stood surety in person for that purpose. On 19th December, 1953 the accused was absent. A telegram was received by the Court on behalf of the accused mentioning the fact that his son was seriously ill at Kankroli and that he was unable to attend the Court for that reason. The Court thereupon fixed the case for hearing on 23rd December, 1953 and informed the date fixed to his counsel who was present before the Court, On 23rd December, 1953 too the accused remained absent, the Court thereupon directed issue of notice both to the accused and the surety to show cause on 30.12.53 why the amount of Rs. 200 mentioned in bond of each of them should not be recovered. In pursuance of this notice, surety Naharji appeared. He gave a reply stating that the accused could not remain present on the earlier date, as his son was seriously ill at Kankroli. The accused did not submit any reply. The case was fixed for evidence on the reply submitted by the surety. The surety adduced no evidence and the Court thereupon directed the recovery of the entire amount. It may be stated here that on 30th December 1953 the accused did remain present before the Magistrate. Against the order of the Magistrate directing the recovery of the entire amount from the accused as well as from the surety, an appeal was preferred,; which however proved unsuccessful. Thereafter a petition for revision was filed in the Court of Sessions Judge, which was rejected. The present revision -application is thereupon filed by both the accused as well as the surety.

(2.) MR . Malgawa, who appears for the petitioners, contended that he wishes to assail only the propriety of the order for recovery of the entire amount of the bonds, in view of certain circumstances appearing on record It was pointed out by him that the accused appeared immediately after the order was passed directing issue of the notice and the surety had acted without any negligence. He also contended that the accused too had not acted irresponsibly and that although, there was no ground to the extent of saying that no part of the penalty should be realised from the accused and the surety, he would pray that the amount should be substantially reduced. The learned counsel relied upon the decision reported in : A.I.R. 1933 Lah 42 (Jora Singh vs. Emperor) in support of his contention. In that case Shadilal C.J. observed that where the accused is arrested and the surety is proved to be unable to pay the forfeited amount which in the opinion of the High Court is excessive, the amount can be reduced under the orders of the High Court.

(3.) THE result is that this revision -petition is pardy allowed. The order passed against the surety directing recovery of the bond of Rs. 200 modified and it is ordered that instead of Rs. 200, Rs. 100 should be recovered from the surety, AS regards the accused, there is no reason to interfere with the order of the Magistrate as regards him. The petition concerning him is dismissed.