HARIHAR SHANTILAL JOSHI Vs. STATE OF GUJARAT
LAWS(GJH)-2013-2-281
HIGH COURT OF GUJARAT
Decided on February 12,2013

Harihar Shantilal Joshi Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

HARSHA DEVANI - (1.)THIS appeal under section 449 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") has been filed by the appellant (surety) challenging the order dated 8.8.2011 passed by the learned Special Judge, Narmada, at Rajpipla below Exhibit-76 in Special Atrocity Case No.18 of 2006, whereby the learned Judge has passed an order to recover an amount of Rs.5,000/- from the surety by issuance of a recovery warrant on account of failure on the part of the surety to keep the original accused present before the court.
(2.)THIS matter is argued by Mr. Divyesh Harihar Joshi (original accused) as the power of attorney of the appellant Mr. Harihar Shantilal Joshi. The accused is facing charges under sections 504 and 186 of the Indian Penal Code and section 3(1) (x) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 in Special Case No.18 of 2006. In connection with the said offence, a bail bond has been submitted by the original accused which has been signed by the surety assuring the court that the accused would remain present before the court during the course of trial and in case of failure to do so, he binds himself to pay Rs.5,000/-. Such bond had been executed on 5th February, 2006.
The record of the case reveals that the charge came to be framed on 16.7.2007 and the matter was kept for evidence on 30.7.2007. Thereafter from time to time, various witnesses were examined by the prosecution and were also cross- examined by the original accused. It appears that on 29.12.2008, the record and proceedings were sent by the District Court as per letter dated 29.12.2008, presumably in view of the Criminal Revision Application No.696 of 2008, which was filed before this court. Subsequently, Criminal Revision Application No.696 of 2008 came to be disposed of and hence, the case papers were received by the court on or about 10th February, 2011 and the matter then proceeded further.

(3.)IT appears that thereafter from time to time, the matter came to be adjourned. On 22.3.2011 the accused made an application under section 311 of the Code seeking to recall all the witnesses, including the first informant, for cross- examining them in the context of the first information report, wherein, it is inter alia stated that a copy of the first information report was given to him pursuant to an order dated 12.03.2008, after which, on 3.07.2008 he had made an application for recall of all witnesses including the complainant for cross-examination which came to be rejected by an order dated 3.10.2008, however, for the grounds stated therein he had made the said application. By an order dated 25.03.2011 the said application came to be rejected on the ground that there were no new circumstances for making the said application and that the same had been made only with a view to delay the proceedings. On 13.7.2011, the accused made yet another application (Exhibit-63) under section 311 of the Code seeking to recall all the witnesses, except the Investigating Officer for cross-examining them on the ground that earlier he was appearing as party-in-person and was not aware of the intricacies of law and had cross-examined the witnesses, however, now he had engaged an advocate and as such, in the interest of justice, the witnesses may be recalled for cross- examination by the advocate. By an order dated 14.07.2011, the said application came to be rejected on the ground that earlier, on two occasions such applications for recalling the witnesses had been rejected by the court and that engaging an advocate was not sufficient ground under section 311 of the Code for recalling of the witnesses. Pursuant thereto, the accused gave an application for adjournment for preferring revision before the High Court against the said order, which came to be rejected by the learned Judge. Thereafter, the matter was listed on 15.7.2011 when neither the accused, nor his advocate, were present and a third person was present on behalf of the accused and gave an application for adjournment. The court passed an order below the said application and issued non-bailable warrant against the accused. On 18.7.2011, the court observed that the non-bailable warrant which had returned duly unserved and the accused was not present. However, his sister has given an application for exemption, which came to be rejected. The non-bailable warrant came to be re-issued for service. On 22.7.2011 when the case was called out, the accused was not present. Non- bailable warrant was returned duly unserved. On that day the mother of the accused gave an exemption application along with other papers, which came to be rejected. The court passed order for re-issue of non-bailable warrant against the accused as well as notice to the surety (the appellant herein). On 27.7.2011, when the case was called out, the accused was not present. The non-bailable warrant and notice were returned unserved. The mother of the accused was present who gave an exemption application, which came to be rejected. A non-bailable warrant as well as notice to surety came to be re-issued. On 1 st August, 2007, the accused was absent and the surety was present. The non-bailable warrant was returned unserved and notice was returned served. The surety gave an application for time, which was granted in the interest of justice and the case came to be adjourned to 5 th August, 2011 for service of non-bailable warrant. On the same day, after the Rojnama was written, the mother of the accused filed an application for adjournment which came to be rejected. On 5th August, 2011, when the case was called out, the accused and his advocate were not present. His mother was present. The surety was not present. The exemption application given by the mother of the accused was rejected. On this occasion, the mother of the accused had given an application on behalf of the surety with a medical certificate; hence, the matter was adjourned, in the interest of justice, to 8th August, 2011. On 8th August, 2011 when the case was called out, the accused and his advocate were not present. His mother was present. She gave an application for adjournment which came to be rejected. The mother of the accused, namely, the wife of the surety gave an application for adjournment on behalf of the surety, however, by the impugned order dated 8th August, 2011, the trial court observed that the surety was not present and that despite sufficient opportunities having been granted, he had not kept the accused present. The Gujarat High Court has not passed any order staying the proceedings. Under the circumstances, the surety has failed in fulfilling his duties and as such, recovery warrant be issued for recovery of the amount of surety. The matter was adjourned to 11th August, 2011 for service of non-bailable warrant to the accused and recovery warrant to the surety. On 9 th August, 2011, when the case was called out, the surety was present. He gave an application for taking the case on board which came to be granted. The surety gave an application for depositing the amount in the court with objection, which came to be rejected. The surety gave an application for time, which came to be rejected. The surety gave an application for accepting the amount with objection, which came to be rejected. The surety gave another application, whereby he deposited the amount which he was liable to pay as surety and the same came to be granted. The amount of Rs.5,000/- came to be deposited vide receipt No.00155873. The court thereafter passed an order to issue non-bailable warrant to the accused and released the surety from the responsibility as a surety. The matter was then adjourned to 11th August, 2011 for service of non-bailable warrant. On 11th August, 2011, when the case was called out, the accused was not present. The non-bailable warrant was sent for service to accused and the matter was adjourned to 20th August, 2011. On 20 th August, 2011, when the matter was called out, the accused was not present and the non-bailable warrant was not returned either served or unserved, hence, the matter was adjourned to 2nd September, 2011. On 2nd September, 2011, once again the accused was not present and the non-bailable warrant was not returned either served or unserved, hence, the matter was adjourned for service of non- bailable warrant to the accused to 23rd September, 2011.


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