IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 1445-SB of 2009 (O&M)
Date of decision: 29th May, 2009
Laxman
... Appellant
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Rakesh Dhiman, Advocate for the appellant.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Criminal Appeal No. 1445-SB of 2009
Admitted.
Criminal Misc. No. 28511 of 2009
In the present case, penalty of Rs.50,000/- has been awarded
by the trial Court under Section 446 Cr.P.C. Present application has been
filed for suspension of execution of the order dated 14th May, 2009.
Issue notice of the application to AG Haryana.
On the asking of Court, Mr. S.S. Kharb, Assistant Advocate
General, Haryana accepts notice on behalf of the State. Copy of the paper
book has been supplied by counsel for the appellant to the counsel for the
State.
Criminal Appeal No. 1445-SB of 2009 (O&M) 2
During course of arguments, counsel for the parties are in
agreement that appeal in itself can be disposed off. Therefore, appeal is
taken on board for final hearing.
Criminal Appeal No. 1445-SB of 2009
Case FIR No. 169 dated 07.05.2007 was registered at Police
Station Sector 10, Gurgaon under Section 302 IPC and section 25, 54, 59
of Arms Act. Rakesh, Manoj, Jyoti Parkash and Ravi were named as
accused. After registration of the FIR, the matter was investigated, report
under Section 173 Cr.P.C. (challan) was submitted. Accused were tried by
the Court of Additional Sessions Judge, Gurgaon. Case is now fixed before
the Additional Sessions Judge, Gurgaon for further proceedings. Jyoti
Parkash was granted bail.
Appellant Laxman, being a family friend, stood as surety for
Jyoti Parkash son of Suraj Bhan, resident of village Sirohi, Police Station
Nangal Chaudhary, District Mohindergarh. On 6th May, 2008, when case
was fixed for appearance of Jyoti Parkash, he had not appeared,
resultantly his bail bonds were canceled and notice was issued to the
appellant under Section 446 Cr.P.C. On the receipt of notice, the appellant
had not appeared before the Court, as it is stated that family members of
Jyoti Parkash assured that on next date of hearing, Jyoti Parkash will
cause appearance. On failure, on the part of Jyoti Parkash to appear,
warrants of arrest of the appellant were issued. The appellant was taken
into custody. Later he was released on bail.
Learned trial Court, due to non-appearance of Jyoti Parkash,
after following due procedure, has fastened the appellant with penalty of
Rs.50,000/-.
Mr. Rakesh Dhiman appearing for the appellant has stated
that appellant stood surety for Rs.50,000/- and the entire amount has been
Criminal Appeal No. 1445-SB of 2009 (O&M) 3
fastened as penalty. The appellant is stated to be more than 55 years of
age. Counsel has submitted that mitigating circumstances have not been
taken into consideration and order awarding entire amount of surety bonds
as penalty is harsh.
There is nothing on the record that the appellant had
facilitated escape of Jyoti Parkash. He is not assessory to the act of Jyoti
Parkash to abscond from the Court of law. The Courts have always held
that the penalty imposed upon the surety should always be commensurate
with the mistake committed.
Mr. S.S. Kharb, Assistant Advocate General, Haryana has
stated that trial has been held up due to non-appearance of Jyoti Parkash
and the appellant, being surety, was duty bound to produce him. On failure
of appearance of Jyoti Parkash, the appellant must pay the entire amount
of surety.
Taking into consideration submissions made by counsel for
the parties, I am of the view that imposition of entire amount of surety as
penalty is harsh. Appellant is aged 55 years. As stated, he has a large
family to support and he usually remain sick. No intentional or malafide
conduct can be attributed to the appellant and appellant had not facilitated
escape of Jyoti Parkash @ Jyoti. Therefore, ends of justice will be fully met
in case amount of penalty is reduced from Rs.50,000/- to Rs.25,000/-.
With these observations, present criminal appeal is disposed
off.
[KANWALJIT SINGH AHLUWALIA]
JUDGE
May 29, 2009
rps