A surety must be afforded an opportunity to contest the imposition of a penalty for non-production of an accused, adhering to principles of natural justice.

JUDGMENT :

Virender Singh, J.

Appellant Bihari Lal has preferred the present appeal, under Section 449 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr. P.C.’), against the order dated 25.5.2023, passed by the Court of learned Special Judge, Kullu, District Kullu, H.P. (hereinafter referred to as ‘the trial Court’), in Sessions Trial No. 26 of 2020, titled as, ‘State of H.P. vs. Kamal Kumar’, whereby, the learned trial Court has imposed penalty of Rs. 50,000/-, on the appellant, and issued recovery warrant, under Section 421 Cr. P.C.

2. Brief facts, leading to filing of the present appeal, before this Court, as per the record, may be summed up as under:

One Kamal Kumar, S/o Joginder Singh, R/o Amritsar, Punjab (hereinafter referred to as ‘the accused’) was arrested by the Police, in connection with case FIR No. 50/2020, dated 21.3.2020, registered under Sections 354-A and 506 of Indian Penal Code (hereinafter referred to as ‘the IPC’) and Section 8 of Protection of Children from Sexual Offences Act (hereinafter referred to as ‘the POCSO Act’), with Police Station, Manali, District Kullu.

2.1 Accused Kamal Kumar filed an application under Section 439 Cr. P.C., bearing No. 70 of 2020, before the learned trial Court, which was decided by the learned trial Court, on 29.6.2020, directing the release of said Kamal Kumar on bail, during the pendency of the trial, subject to his furnishing personal bond, in the sum of Rs. 50,000/- with one surety, in the like amount, to the satisfaction of the learned JMFC, Manali, District Kullu, H.P. Consequently, the application for acceptance of personal bond and surety bond, was allowed on 28.7.2020 by the learned JMFC, Manali, District Kullu, H.P.

2.2 In pursuance of the directions of the learned trial Court, while releasing accused Kamal Kumar on bail, the appellant herein, stood surety by giving solemn undertaking to produce accused Kamal Kumar, before the learned trial Court, on each and every date of hearing. However, accused Kamal Kumar has not put appearance before the learned trial Court, where charge sheet against him was filed. Efforts were made to secure his presence, by issuing bailable warrants, but, his presence could not be secured. Consequently, on 17.3.2023, the learned trial Court has passed the following order:

“Accused not present. Perusal of the record shows that surety Bihari Lal of accused was present in the Court on 27.9.2022 and he sought time to produce the accused before this Court on next date of hearing, i.e., on 29.11.2022 and on 29.11.2022 surety did not put appearance before the Court, however, Shri Varun Kant Sharma, Advocate appeared on behalf of surety and undertakes to produce the surety before this Court on next date of hearing, i.e., today. Today neither surety Bihari Lal nor his counsel Shri Varun Kant Sharma, Advocate put appearance before this Court. The accused is also not produced before this Court. Bailable warrant issued against accused not received back executed or unexecuted. Now, this Court has no option except to cancel and forfeit the bail bonds furnished by the accused before this Court. Accordingly, the personal and surety bond executed by accused before this Court are cancelled and forfeited to State of H.P. Let the accused be served through non-bailable warrant for 25.5.2023. Proceedings under Section 446 Cr.P.C. be initiated against accused as well as his surety and notices be issued to them for the date fixed, i.e., 25.5.2023.”

2.3 Despite issuance of non-bailable warrants, when, the presence of accused Kamal Kumar could not be secured, learned trial Court has ordered to initiate the proceedings, under Section 82 of the Cr. P.C., against accused Kamal Kumar, vide order dated 6.3.2024. Learned trial Court has imposed penalty of Rs. 50,000/- upon appellant Bihari Lal and recovery warrants were issued to recover the said amount of penalty from the appellant, vide order dated 25.5.2023, which has been assailed, before this Court, by