JARNAIL SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Heard counsel for the parties. This appeal has been filed under Section 449 of the Code of Criminal Procedure ("CrPC" for short) against the order dated 10.9.2009 passed by the learned Additional Sessions Judge, Ropar whereby the recovery warrants have been issued to Collector, Fatehgarh Sahib for recovering an amount of Rs.25,000/- as arrears of land revenue.

(2.) The appellant Jarnail Singh stood surety for one Kamaljit Singh who was an accused in case FIR No.54 dated 18.5.2002 registered at Police Station Anandpur Sahib, District Ropar for the offences under Sections 302, 201, 176/34 India Penal Code ("IPC" for short). The said accused Kamaljit Singh absconded during the trial of the case and was declared a Proclaimed Offender by the Court of learned Additional Sessions Judge, Ropar. The appellant was served notice (Annexure P1) on 27.8.2009 under Section 446 CrPC asking him to pay the amount of surety of Rs.25,000/- or to show cause as to why it should not be paid. In response to the notice, the appellant submitted that he did not want to show cause. However, a lenient view may be taken and a short time may be given for paying the amount of surety. On 10.9.2009, the appellant appeared in person and showed his inability to pay the penalty amount of Rs.25,000/-. The learned Additional Sessions Judge found no ground for leniency and ordered for issuance of recovery warrants to the Collector, Fatehgarh Sahib for recovering an amount of Rs.25,000/- as arrears of land revenue. The said order is assailed in this appeal. Learned counsel for the appellant has submitted that on 5.4.2009 the accused Kamaljit Singh was arrested and on 27.8.2009 when the notice (Annexure P1) was issued to the appellant, he was already in custody. Therefore, no ground was made out for recovering the penalty.

(3.) In response, learned State counsel has submitted that the accused had absconded and the appellant having stood surety for the same was liable to pay the amount of surety. At the time of issuing notice of motion, the amount of recovery was ordered to be stayed subject to deposit of Rs.5,000/- in the trial Court. Learned counsel for the appellant has submitted that an amount of Rs.5,000/- has been deposited by the appellant. It is not in dispute that the accused Kamaljit Singh was arrested on 5.4.2009. Therefore, at the time when the notice (Annexure P1) was issued to the appellant on 27.8.2009, the accused Kamaljit Singh was in custody. An interim order dated 27.8.2009 in the trial proceedings against accused Kamaljit Singh has been reproduced in the grounds of appeal in which it is mentioned that the accused is in custody and two PWs were examined on the said date. The case for remaining prosecution evidence was adjourned to 10.9.2009. In terms of the said interim order, notice under Section 446 CrPC was also issued to the appellant Jarnail Singh and he stated that he did not want to show cause to the said notice and prayed that a lenient view may be taken. Besides, he requested for short time to pay the amount of surety to the State. The case was adjourned for payment of surety amount to the State. On 10.9.2009 as already noticed, the recovery warrants were issued. However, the accused Kamaljit Singh, was present in Court on the said date also, as he was already in custody. The appellant in response to the show cause notice dated 27.8.2009 (Annexure P1), had already submitted that he did not want to show cause and prayed for a lenient view may be taken. It may, however, be noticed that the accused for whom the appellant had stood surety did abscond and later was arrested. Besides, it is not shown or even alleged that the appellant had connived with the accused so as to enable him to abscond. In the facts and circumstances and keeping in view the fact that the accused Kamaljit Singh had been arrested and is already in custody; besides, there is nothing to show that the appellant had connived with the accused so as to facilitate him to abscond from the trial; besides, the appellant could not perceive that the accused would abscond, it would be just and expedient that the penalty is reduced to an amount of Rs.5,000/- which has already been deposited. Accordingly, the appeal is allowed to the extent that the amount of penalty of Rs.25,000/- is reduced to Rs. 5,000/- which has already been deposited by the appellant in the trial Court.