MILAP CHANDRA, J. - (1.) THIS revision petition has been filed under. Section 397, Cr. P. C, 1973 against the order of the learned Additional Sessions Judge, Raisinghnagar dated August 25, 1981, partly allowing the appeal preferred under Sec. 449 (1) Cr. P. C, 1973. The facts of the case giving rise to this revision may be summarised thus.
(2.) THE accused-petitioner No. 2, Dalveer Singh, was facing trial under Section 54 Rajasthan Excise Act. He furnished his personal bond of Rs. 2,000/-and the surety bond of the petitioner No. 1, Santa Singh, of the like amount for his appearance before the Munsiff-cum-Judicial Magistrate, Raisinghnagar. On January 20, 1981, he failed to appear before the learned Magistrate. His bail-bonds to appear before the learned Magistrate were forfeited and notices under Sec. 446 (1) Cr. P. C. were issued to both the petitioners. In reply, the accused Dalveer Singh stated that he could not appear on January 20, 1981 due to illness and for subsequent dates, he had no intimation, he did not absent himself intentionally and he could produce the medical certificate about his illness. Similar reply was filed by the surety-petitioner No 1 Santa Singh. The same day, the learned Magistrate passed the order for the recovery of the entire amounts of the bonds. Criminal Appeal No. 73/81 was filed by both the petitioners before the learned Additional Sessions. Judge, Raisinghnagar, who partly allowed it by his judgment dated August 25, 1981. He reduced the amount of penalty from Rs. 2, 500/- to Rs. 2, 000/ -. Against this order, this revision has been preferred by the petitioners. It is contended by the learned counsel for the petitioners that the learned Magistrate* should have given an opportunity to the accused-petitioner to produce a medical certificate of his illness but it was not given despite requests made in their replies to the notices. If an opportunity would have been given, the petitioners would have filed medical certificate to the satisfaction of the learned Magistrate. He further contended that this aspect of the case was not considered by the learned Additional Sessions Judge also. He also contended that the trial was going on since 1977 and the accused was attending the Court on every date. He lastly contended that the accused has finally been acquitted in the year, 1981. In reply, it has been contended by the learned Public Prosecutor that the petitioner should have remained present on January 20, 198l and the medical certificate should have been filed along with the reply. She also contended that the learned Additional Sessions Judge, Raisinghnagar had already remitted Rs. 5,00/- each from the bail bonds. Arguments have been heard and the record has been perused.
(3.) ADMITTEDLY, replies were filed by the accused - petitioner No. 2, Dalveer Singh, and Surety petitioner No. 1 Santa Singh on June 20, 1981 and on the same day, the learned Munsiff-cum-Judicial Magistrate, Raisinghnagar passed the order for the payment of the entire amount of the bonds. It is clearly stated in the replies of both the petitioners that medical certificate regarding the illness of the accused on January 20, 1981 would be filed. The learned Magistrate should have given an opportunity to the petitioners for producing it. It is not in dispute that this aspect of the case was not considered by the learned Additional Sessions Judge, Raisinghnagar. It is not the case of the prosecution that the accused-petitioner Dalveer Singh was a habitual absentee or action under Sec. 446, Cr. P. C. was also taken on earlier occasions. In view of these facts, the recovery of Rs. 2,000/- from the amount of bond of Rs. 2. 500/- appears to be very exorbitant. In such circumstances, a nominal amount would have been sufficient. No useful purpose will be served in remanding the case after seven years, particularly when the accused petitioner No. 2 Dalveer Singh has been acquitted in the year 1981 itself. ;