NETAR SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) By way of instant petition filed under Sec. 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for quashing of orders dated 29.8.2017, 9.4.2018 and 18.9.2018, passed by learned Special Judge(II) Kullu, H.P., whereby bail bonds of the accused have been cancelled and forfeited to the State of H.P., and proceedings under Sec. 446 Cr.P.C have been initiated against the present petitioner, who stood surety to the accused.

(2.) Facts, as emerge from the record are that in the Session Trial No. 27 of 2016, titled as State of Himachal Pradesh versus Bhupinder Kumar, which is pending adjudication before the learned Special JudgeII, Kullu, District Kullu, H.P., present petitioner stood surety of accused namely, Bhupinder Kumar and furnished surety bond in the sum of Rs. 1,00,000.00. Since, accused failed to appear before the Court below, it cancelled the bail bonds of the accused and forfeited to the State of H.P. and initiated proceedings under Sec. 446 Cr. P.C., against the present petitioner vide order dated 29.8.2017 (Annexure P1). On 19.9.2017, petitioner sought time to file reply,whereafter he made all out efforts to trace and find out the accused, so that he could be presented before the trial Court, but he was unable to find out the accused. On 9.4.2018. learned Special Judge(II) Kullu forfeited the surety amount to the State of Himachal Pradesh and issued realization warrant against the petitioner for 26.5.2018 ( Annexure P2). On 18.9.2018 learned court below adjourned the matter for 26.10.2018 for payment of forfeited amount i.e. Rs. 1,00,000.00. In the aforesaid background, present petitioner has approached this Court in the instant proceedings, praying therein to quash and setaside the aforesaid orders passed by the learned court below.

(3.) Mr. Balwant Singh Thakur, learned counsel representing the petitioner, contended that bare perusal of zimni orders placed on record, clearly suggests that petitioner was condemned unheard because no opportunity of being heard was ever afforded to the petitioner by the Court below before forfeiting the surety amount. He further contended that petitioner belongs to poor family and he is hardly meeting daily expenses of the family and it is beyond his limit to deposit Rs. 1,00,000.00 in terms of the realization warrant issued by the Court below vide order dated 9.4.2018. He further contended that petitioner has a family to support and he requires sufficient money to look after his old age parents and school going children. While referring Sec. 446(3) Cr.P.C, Mr. Thakur, contended that Court has power "to remit any portion of the penalty" and as such, in the peculiar facts and circumstances of the case, prayer made in the application may be accepted.