Rahmat Khan vs State on 9 January, 2009

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              Rahmat Khan vs. State of Rajasthan


                  S.B.Cri. Appeal No.377/2008

Date of Order :                                     09.01.09


          HON'BLE MR.JUSTICE MANAK MOHTA



Mr.A.K.Acharya for the appellant.
Mr.Vishnu Kachhawaha , Public Prosecutor.


     The present appeal has been filed by Rehmat Khan

against the    order dated 24.08.07     passed by the learned

Addl.District & Sessions Judge ( Fast Track) No. No.1, Udaipur

in Criminal Misc. Case No.114/2007 whereby a warrant of

recovery of Rs.10,000/- has been issued against the appellant.



     The brief facts of the case are as under:-

     It is revealed from the record that     one   case against

Sahjad Khan & Ors. was pending under Sections 323, 326,

307 and 149 IPC, in which          Sahjad Khan     moved a bail

application and a bail order was passed in his favour and he

was ordered to be released on bail on furnishing bail bond

and surety bond of Rs.20,000/-       each. It is stated that the
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appellant became surety of the accused by        furnishing bail

bonds of Rs.20,000/-. During the proceedings he also

deposited Rs. 10,000/- in the court vide Receipt No.031230. It

is further revealed that the accused Sahjad Khan did not

appear on 16.04.07 in the Court. Therefore, the matter was

taken up by the learned Sessions Judge and on 17.04.07 his

bail bond was cancelled and proceedings under section 446

IPC were initiated. It is further stated by the learned counsel

for the appellant that he filed a reply stating that Sahjad Khan

has been detained in another case and he will make efforts to

produce accused Sahjad Khan in the court. But vide the

impugned order dated 24.08.07 a warrant for recovery of the

remaining amount has been issued. Against that the present

appeal has been filed.



       Notice of this appeal was given to the respondent.

Record was called, arguments were heard.



     During the course of arguments learned counsel for the

appellant submitted that the learned Sessions Judge has not

given due consideration on the reply filed by the appellant. No
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opportunity was given of being heard and in a hasty manner,

the   total surety amount has been forfeited. Therefore, the

order is liable to be set aside. It is also submitted that after the

cancellation of the bail, accused has appeared before the

learned lower court and he has faced the trial. So far as his

knowledge is concerned, the accused has been acquitted from

the main charge. He urged that looking to the duration of his

absence, a lenient view should have been taken. The learned

trial court should not have forfeited the amount, it is also

reported that he has deposited 50% of the surety amount.

Thus, on the basis of aforesaid submissions, a prayer was

made to set aside the impugned order and the              recovery

proceedings and the appeal may be allowed.



      On the contrary, the learned Public Prosecutor refuted

the contentions and submitted that he was a surety and it was

expected from him to produce the accused on each and every

date of hearing,     but he failed to maintain his obligation.

Therefore, the surety amount has rightly been forfeited.



      I have considered the rival submissions. From the
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available record it is not made clear that proper opportunity of

being heard was given, before forfeiting full amount, as the

appellant has submitted reply before the learned lower court

but the learned court has not properly considered his reply.



           Thus, on the basis of aforesaid discussions, 50% of the

forfeited amount is just and reasonable to be forfeited . The

appellant has already deposited Rs.10,000/- against the surety

amount of Rs.20,000/- Therefore, the recovery of the remaining

amount of Rs.10,000/-, by way of impugned order, is liable to

be quashed and set aside.



           In the net result, the appeal is partly allowed. Out of the

surety amount, a sum of Rs.10,000/- is forfeited, therefore,

the recovery of the remaining            amount by way of impugned

order, is set aside . The appellant is not under any obligation to

pay any more sum. The appeal stands disposed of accordingly.



                                              (MANAK MOHTA), J.

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