LAXMI NARAYAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Laxmi Narayan, the petitioner, had stood surety for one Ratanlal, who was being tried for an offence under the Opium Act by the Munsif and Judicial Magistrate, Pokharan, for a sum of Rs. 10000.00. The said accused Ratanlal absented himself on Aug. 5, 1974. Therefore, the learned Magistrate forfeited the personal and surety bonds and issued notice to the accused as well as the surety to show cause why the amount of the bond may not be recovered. The notice of the accused was not served despite being issued on a number of occasions. The surety Laxmi Narayan, in the first instance, took time to produce the accused and he made an application in this respect on July 20, 1974. Time granted to him, but he could not produce the accused. Ultimately, on Dec. 16, 1978, Laxmi Narayan moved an application that he had come to know through one of the accused as also from other persons that the accused Ratanlal had already died on April 26, 1974 and, therefore, he could not have presented himself before the court on May 8, 1974. The learned Magistrate, however, does not appear to have taken this fact into consideration and again issued a warrant of arrest against accused Ratanlal by his order dated Dec. 16, 1978. Thereafter on March 19, 1979, the petitioner appears to have again brought the fact of the death of Ratanlal to the notice of the learned Magistrate; whereupon, he directed him to produce the evidence in support of the fact of death of Ratanlal. The next date fixed was March 19, 1979. On that day, the petitioner was not present and his counsel sought time to produce the petitioner and also to produce evidence regarding the death of Ratanlal. The matter was adjourned to April 19, 1979. On that day, when the case was called, the petitioner and his counsel could not appear and, therefore, the learned Magistrate directed that warrants of attachment for the recovery of the amount of Rs. 10000.00 each may be issued against the accused Ratanlal and the surety Laxmi Narayan. However, before this order could be signed, the counsel for the petitioner appeared, but as the petitioner was not present, and according to the learned Magistrate in view of the earlier proceedings, the petitioner did not appear to be keen to file the reply to the notice under. 446, Cr. P. C. and produce the evidence, he maintained the earlier order for the issue of warrants of attachment for the recovery of the full amount of the bonds. Aggrieved of this order, dated April 19, 1979, petitioner Laxmi Narayan went up in appeal before the learned Sessions Judge, Jodhpur, but the same was dismissed. Hence this application.

(2.) I have heard learned counsel for the petitioner and the learned Public Prosecutor and have perused the record. A photo state copy of the death certificate of Ratanlal obtained from the Registrar, of the Births and Death, Municipal Council, Ajmer has been filed along with the application under Sec. 82, Cr. P. C. and the originals have also been shown to me today.

(3.) From the facts narrated above, it does appear that the fact of death of Ratanlal had been brought to the notice of the learned Magistrate by the present petitioner on Dec. 16, 1978 and he had filed an affidavit to that effect stating the source of his knowledge. The learned Magistrate of course does not appear to have taken into account that affidavit, otherwise, at that stage, he would not have directed the issuance of warrants of arrest against Ratanlal. On the next date, i.e. 23.2.79, he does not appear to have attached any importance to the affidavit and granted time to the petitioner to produce the evidence to prove the petitioner to Ratanlal. For that purpose only one opportunity was granted to the petitioner when the case was fixed on March 19, 1979. Thereafter, the order for the recovery of the amount was passed on April 19, 1979 first in the absence of the petitioner and his counsel and later, the same was confirmed in the presence of the counsel for the petitioner on the ground that it appeared that the petitioner was not keen to file the reply or to produce evidence, which fact on the face of it, appears to be wrong since he had already filed reply along with the affidavit and was not granted sufficient opportunity to produce evidence. Not only this it further appears that the affidavit filed by the petitioner regarding the death of Ratanlal does not appear to have been controverted by the State. In these circumstance, there was no reason or the learned Magistrate to disbelieve or ignore this affidavit. If proper opportunity had been granted to the petitioner, probably the death certificate which has now been produced could also have been produced before the learned Magistrate himself and all these proceedings would have been obviated. The learned Sessions Judge also appears to be of the view that probably Ratanlal had died, but according to him, it could not be taken that he had died before May 8, 1974, but this observation appears to have been made as the affidavit does not appear to have been brought to his notice. In the fact of the affidavit stating the date of death of Ratanlal, the date of death of Ratanlal, in my opinion, cannot be doubted.