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.