Jasvender Singh and Another vs State of Rajasthan

Milap Chandra, J.—These three revisions have been filed u/s 397, Cr.P.C. 1973 (here in after referred to as the ''Code''), against the similar order of the Additional Sessions Judge, Sri Raisinghnagar dated September 28, 1981 by which he dismissed the three appeals filed u/s 449 of the Code and affirmed the orders of the Munsif cum-Judicial Magistrate, Raisinghnagar dated May 12, 1981, directing the recovery of the entire amounts of the bail bonds furnished by the petitioners. The facts of the case giving rise to these revisions may be summarised thus.

A case under Sections 307, 148 and 149, IPC was pending against the accused-petitioners Jasvender, Jeet Singh and Nasib Singh in the the Sessions Judge, Sri Ganganagar. Personal bonds in the sum of Rs. 2,000/-each and surety bonds of the like amount were furnished by the petitioners on February 12, 1980. It appears that the case was sent u/s 328 of the Code to the Chief Judicial Magistrate, Sri Ganganagar. The bail bonds were forfeited as the accused-petitioners failed to appear before him on 3-11-80 Three separate files in respect of each accused were opened. These cases were subsequently transferred by the Sessions Judge, Sri Ganganagar to the Court of the Munsif-cum-Judicial Magistrate, Raisinghnagar vide order-sheets dated March 2, 1981. The petitioners appeared before him and filed their similar replies in all the three cases. Their replies are that the accused-petitioners did not appear before the Court on November 3, 1980 due to apprehension that they would be killed by the police, showing an encounter with them in connection with the FIR No. 177 dated October 7, 1980 of the Police Station, Anupgarh. The learned Munsif-cum-Judicial Magistrate, Raisinghnagar was not satisfied with their replies and, accordingly, ordered for the recovery of the entire amounts of the bonds by this orders dated May 12, 1981. All the three accused and their sureties preferred appeals u/s 149(1) of the Code before the learned Additional Sessions, Judge Raisinghnagar. Their appeals were dismissed by his orders dated September 26, 1981 against which these revisions have been filed.

It is contended by the learned Counsel for the accused-petitioners that the bail bonds were furnished before the learned Sessions Judge, Sri Ganganagar for the appearance before his Court and the orders of the recovery of the amounts of penalties have been passed by the learned Munsif-cum-Judicial Magistrate, Raisinghnagar which could not be done. He further contended that the petitioners furnished bail-bands for the appearance before the learned Sessions Judge, Sri Ganganagar and not before the Chief Judicial Magistrate, Sri Ganganagar and as such the bail-bonds could not legally be forfeited if the accused petitioners failed to appear before the latter on November 3, 1980. He also contended that the replies of the petitioners find corroboration from the solitary fact that the petitioners were subsequently arrested by the police. He lastly contended that the matter relates to the year, 1981, original criminal case has ended in the discharge of the accused-petitioners and, therefore, the amounts of penalty deserve to be reduced substantially in all cases.

In reply, the learned Public Prosecutor contended that the original case was transferred by the Sessions Judge, Sri Ganganagar under Sections 228 of the Code to the Chief Judicial Magistrate, Sri Ganganagar, the accused persons failed to appear before him on 3-11-80 as is clear from the orders (Robkers) and these three cases were subsequently transferred by the learned Sessions Judge, Sri Ganganagar to the Court of the Munsif-cum Judicial Magistrate, Raisinghnagar. He further contended that in view of the explanation given below Sub-section (1) of Section 446 of the Code, it was necessary to mention in the bonds that the accused-persons would also appear before the Court to which the case was subsequently transferred. He lastly contended that the Court may reduce the amounts of penalty as may be deemed fit and proper.

There is no great force in the contention of the learned Counsel for the petitioners that the bail bonds could rot be forfeited by the Chief Judicial Magistrate, Sri Ganganagar as the accused were not required to appear before him as per terms of the bail bonds, Explanation given below u/s 446 of the Code runs as under:

Explanation-A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.

It was, therefore, not necessary to mention in the bail-bonds that the accused petitioners were to appear in the Court where the case might subsequently be transferred.

There is also no force in the contention of the learned Counsel for the accused-petitioner that the Munsif-cum-Judicial Magistrate, Raisighnagar had no jurisdiction to pass the impugned orders dated May 12, 1981. It is clearly recited in the order sheets of March 2, 1981 that these miscellaneous cases had been transferred from the Court of the Chief Judicial Magistrate, Sri Ganganagar to his Court by the Sessions Judge, Sri Ganganagar.

Now the question arises whether the accused-petitioners had shown sufficient cause for their non-appearance on November 3, 1980. All of them have stated in their replies that they did not appear before the Court on this date as they had apprehension that they would be killed by the police, showing an encounter with them in FIR No. 177 dated 7-10-80 of the Police Station, Anoopgarh. In the proceeding u/s 446(1) notice were issued to the accused-petitioners for 5-1-81. These notice were received unserved with the report that they were absconding from their villages due to fear of their arrest by the police. The order-sheets all the three cases of March 2, 1981 recite that the accused-petitioner are said to be in jail in connection with a case. These facts do not support their replies that they apprehended that the police would kill them, showing as an encounter.

Now the question arises about the quantum of penalty. The matter relates to the year 1980. The original case has ended in the discharge of the accused-petitioners. Admittedly, the accused-petitioners were arrested by the police some time afterwards. They failed to appear before the Court on 3-11-80 due to the fear of their arrest. Under these facts and circumstances, the amount of penalty in respect of each bond deserves to be reduced from Rs. 2,000/- to Rs. 200/-.

Consequently, all the three revisions are partly, allowed. The amount of penalty in respect of each bonds is reduced from Rs. 2,000/-to Rs. 200/-. The reduced amounts will be deposited within two months from today failing which coercive steps will be taken against the petitioners for their recovery.