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Judgment
V.S. Kotwal, J.—Heard Shri M.Y. Gupte, the learned Counsel for the petitioner and Shri A.R. Gupte, the learned Senior counsel for the Customs Department.
Rule.
Parties agree to argue the rule today.
The contest lies in a restricted field vis-a-vis the forfeiture of the surety bond and the quantum of penalty that is to be levied. Both the Courts below have forfeited the entire bend to the extent of Rs. 5,00,000/-. Being aggrieved by the said order the surety has thus approached this Court for reduction of the said amount. In view of the restricted field a detailed probe is not necessary. Some of the bare facts would suffice the purpose.
The petitioner herein stood as surety to one Ravi Hari Valia, an Indian National, who is alleged to have indulged in an activity of sale of cars which he was not authorised. Some imported cars were brought in under the carnet facilities and which the said person was not authorised to sell and which he did in contravention of the Rules and Regulations. On that count he was arrested on 10th of June 1985. An application for bail was tendered on his behalf and the learned Magistrate was pleased to grant bail in the sum of Rs. 5,00,000/-. The present petitioner accepted the responsibility of furnishing surety for the said accused in the sum of Rs. 5,00,000/- and he executed the surety bond which on verification was ultimately accepted. In pursuance thereof the said accused come to be released on bail. It is alleged that thereafter the said accused jumped bail as he did not attend the Court and a statement is made at the Bar on behalf of the Department that he has left India. In due course a notice was issued to the petitioner in the capacity as the surety. The petitioner was not able to produce the accused in spite of diligent and repeated efforts. Ultimately on hearing the parties the learned Magistrate was pleased to forfeit the bond with the result that the entire amount of Rs. 5,00,000/- came to be forfeited which devolved on the petitioner as the liability to pay in cash.
The petitioner carried the matter to the Sessions Court but met with no success as the learned Additional Sessions Judge endorsed the said order more or less on the same reasons as assigned by the learned Magistrate. It is against this order that this petition is being filed.
Shri M.Y. Gupte, the learned Counsel for the petitioner, mainly contended that though it may be true that the accused jumped bail and thus the liability may devolve on the petitioner and though it may be true that the petitioner was unable to trace the whereabouts of the accused still the quantum of Rs. 5,00,000/- which is forfeited in the first instance is disproportionate and secondly having regard to the attendant features directing the forfeiture of the entire amount under the bond would not be justified. To substantiate this contention the learned Counsel heavily relied on the fact suggesting the circumstances under which the petitioner persuaded himself to stand as surety for the accused. This, no doubt, has been opposed by Shri A.R. Gupte, the learned Counsel for the Department as according to him there should be some deterrent for the sureties in general and especially in the serious matters so that they would not offer themselves as surety in a casual manner. The learned Counsel, therefore, supports the order of the two Courts below.
It is undoubtedly true as an accepted principle that a surety once accepts the liability and the responsibility cannot be lightly allowed to be relieved out of its rigour and that too in a casual manner and it is equally true that granting concession to the surety may have an impact on the general administration and the accused also may be encouraged to afford surety and thereafter jump bail. The merit of this laudable principle can hardly be doubted. However, on the parallel track there is another side of the coin which also cannot be lightly brushed aside. Though it is permissible in law to forfeit the entire amount under the bond, still a discretion normally vests in the Magistrate depending on the facts and circumstances of each case to consider whether it would be just and proper to forfeit the entire amount or to grant remission and concession in the quantum of an amount of penalty which discretion however must be exercised in a judicious manner. A harmonious balance of these two aspects normally will have to be struck in the interest of justice depending on facts and circumstances of each case. Applying these principles an exercise to assess the merits of the matter would be relevant. It is true that the accused was apprehended on the allegations that he had imported certain cars on the carnet concession and inspite of the Rules and Regulations he sold the cars in India. Shri M. Y. Gupte, the learned Counsel, however, submits that the said accused was getting only a small slice in that transaction as the profit as commission. This, however, would not be so germane in the present proceeding. However, it is strenuously submitted by Shri M. Y. Gupte, the learned Counsel, that there is a compelling circumstance which prevailed upon the petitioner to stand as surety. According to him, the mother of the original accused was seriously ill and had to be lodged in the hospital and the ailment created such an anxiety so much so that the original accused even when he was in custody was admittedly rushing to the hospital under the escort and with the permission of the Court to see his ailing mother. The foundation of this contention appears to be existing on the record. The further contention which flows out of the same is to the effect that the sister of the original accused who was knowing the family of the petitioner practically begged of the petitioner to stand as surety for her brother so that the brother would be at the bed side of her ailing mother. According to the learned Counsel, it is entirely on this humanitarian ground that the petitioner persuaded himself, may be in weak moment, to accept the responsibility to go to the rescue of the original accused in standing the surety. It is under these circumstances that he took the liability. As stated that the mother was ailing for quite some time is not seriously controverted and it does appear that the accused had to go to the hospital to meet the mother even when he was in custody. If that be so, then the further contention which is integrally blended with the first part renders itself quite plausible. To put it in the minimum, there is absolutely nothing on record to discard or distrust that contention and the explanation tendered on behalf of the petitioner. No doubt, this by itself could not be formulated as an excuse to outright wipe out the entire liability though according to Shri M. Y. Gupte this would serve as a backdrop at least for reduction of the amount. This no doubt is countered by Shri A. R. Gupte, as according to him, this would not be an excuse even for the reduction of the amount.
The learned Magistrate while refusing to consider the request has indicated that in such serious offences�"the accused have tendency to abscond and many of the accused have in this case absconded". Unfortunately beyond this there is no other discussion in the order. The validity of this ground may not be questioned wholesale but nonetheless if considered in the context of other contentions it may tend to change the complexion at least to some extent. The same pattern of reasons was followed by the learned Sessions Judge according to whom the petitioner should have been aware of the charges levelled against the accused and also should have been aware that the accused was foreigner. It is now accepted that the accused is an Indian National.
It is further contended by Shri Gupte, the learned Counsel, that the petitioner is not a professional surety and this is the first occasion in which he had landed himself in difficulty as he wanted to oblige the family of the accused. No doubt, he should have been more careful and also should have been aware of the liability in law that was bound to fall as he was enjoined under the bond to see that the accused does not jump hail. This, however, need not be confused to mean that if a person stands as surety for such consideration he is relieved of the liability thereunder to see that the accused regularly attends the proceeding and does not abuse the concession of bail or that his responsibility ends the moment the accused is enlarged on bail, or otherwise every surety can get out of the clutches on such spacious premise. Furthermore the basic premise behind offering surety is not merely to pay the amount under the bond in case accused jumps bail or otherwise the liberty and avoiding to face a proceeding both thus can be unjustifiably enjoyed by the accused, but the surety has to discharge the fundamental liability and obligation to be alert that the concession is not misused. Similarly, the tendency to stand as surety to strangers or for some other considerations cannot be encouraged. Without undermining these principles and the rationale behind them, an individual case can be judged on its own merits and the circumstance relied upon by the learned Counsel, can be taken into account though only in a limited field and not as the governing feature. The facts of the instant case do justify considering the said circumstance as canvassed on behalf of the petitioner. The accused was not a stranger to the petitioner as he was knowing the family well and apparently was satisfied that the accused would not abuse the concession of bail. The petitioner made all the genuine efforts to trace the whereabouts of the accused. Shri M. Y. Gupte, further contended, which cannot be said to be without any justification, that having regard to the nature of offence and attendant circumstances, the bail amount it-self was on the heavier side and as such there was enough scope to persuade either the Court of the first instance or the Appellate/Revisional Court to substantially reduce the bail amount in which event the liability of the petitioner would have been scaled down correspondingly but that there was not much time available to do so. There is enough justification in the submission. This, therefore, would be an addition 1 circumstance. The petitioner deals in textiles and according to Shri Gupte, asking him to pay the entire amount may even tend to practically ruin the family.
Having considered all these features, in my opinion, though in cases of this type a surety cannot be exonerated outright since he cannot be so lightly allowed to escape out of the clutches of the responsibility under the bond, as otherwise it would create several difficulties in the matter of administration of justice, since granting and forfeiture of bail is one of the integral sets therein, having regard to the facts and circumstances of this case as discussed above, this cannot be said to be a proper case not to exercise discretion to grant remission in favour of the petitioner. All facts considered properly, therefore, in my opinion, though the bond can be forfeited a penalty to the tune of Rs. 2,00,000/- would serve the ends of justice. I have no doubt that this will serve as enough lesson for the petitioner not to stand surety in a casual manner like this and this remission would obviously not uproot him from the business of the family.
It is expressly clarified so as to ward off even a remote scope for confusion or misreading of the situation that the observations hereinabove and the conclusions reached in this case are strictly restricted to the facts and circumstances of this case only and thus cannot be equated with any generalised proposition of universal application and as such this decision should not be treated as a precedent in this field nor to serve as the guideline to the Courts below dealing with such matter so that their discretion in that field would always remain unfettered.
Rule partly made absolute.
The order imposing penalty of Rs. 5,00,000/- under the surety bond which was forfeited is modified to the extent of reducing the said penalty amount to the tune of Rs. 2,00,000/-. The petitioner shall be exonerated of the said liability on his paying the said amount of Rs. 2,00,000/-. The petitioner shall pay the said amount within four weeks.