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2006 DIGILAW 756 (GAU)

Sher Alam v. State of Assam

2006-08-14

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. This appeal, made under Section 449 of the Code of Criminal Procedure (in short, "the Code"), is preferred against the order, dated 01.12.99, passed, in CR Case No. 4/88, by the Sessions Judge, Sonitpur, Tezpur, whereby the bail bonds executed by the sureties-Appellants have been forfeited, the bail amount of Rs. 2,00,000/- has been directed to be paid by the sureties-Appellants, the property of the sureties, covered by the bail bonds, have been attached and the Collector has been directed to realize the said rail amount within a period of one month from the date of receipt of the said order. 2. Heard Mr. T.C. Khatri, learned Senior Counsel, appearing on behalf of the sureties-Appellants, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 3. For clear appreciation of the controversy, raised in the present appeal, it is necessary to take note of the provisions of Section 446 of the Code, with this objective in view, Section 446 is reproduced herein below: 446. (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond, under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code. (3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only, (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond, (5) Where any person who has furnished security under Section 106 or Section 117 or Section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under Section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved. 4. A careful reading of Sub-section (1) of Section 446 makes it clear that for the purpose of forfeiting a bail bond, it is incumbent, on the part of the Court, to record the grounds on which its satisfaction is based that the bail bond has been forfeited. On forfeiture of the bail bond, Sub-section (1) of Section 446 requires the Court to pass a conditional order directing the person, bound by such bond, to either pay the penalty thereof or show cause as to why the penalty should not be paid. When such a conditional order is passed, the person, bound by the bond, may decline to show cause and choose to pay the penalty. This does not, however, mean that the Court can dispense with the requirement of giving the person, proceeded against, an effective opportunity of showing cause as to why he should not be made to pay the penalty. In substance, thus, a person, bound by a bond, cannot be forced to pay the penalty without giving to such a person an opportunity of showing cause as to why he should not be made to pay the penalty. In substance, thus, a person, bound by a bond, cannot be forced to pay the penalty without giving to such a person an opportunity of showing cause as to why he should not be made to pay the penalty. Sub-section (2) of Section 446 indicates that if the person, proceeded against, fails to show sufficient cause and also fails to pay the penalty, it is, then, permissible for the Court to proceed to recover the penalty as if the penalty were a fine imposed under the Code. The code, under Sub-section (3) of Section 443, has given to the Court the discretion to remit any portion of the penalty and enforce payment of a part of the penalty imposed by the Court. The exercise of this discretionary power cannot, however, be unreasonable or arbitrary. Considered thus, it is abundantly clear that without giving the person, bound by a bail bond, an opportunity of showing cause as to why he should not be made to pay the penalty, such a person cannot be forced to pay the penalty nor can the penalty be recovered from him as fine. A reference may, in this regard to, be made to the case of Ghulam Mehdi v. State of Rajasthan, AIR 1960 SC 1185 , wherein the Apex Court observed and held thus: This provision shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause only then can the Court proceed to recover the money. In the present case the Appellant was not called upon to show cause why the penalty should not be paid. Before a man can be penalized form of law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore be quashed. 5. Before a man can be penalized form of law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore be quashed. 5. Bearing in mind the provisions of Section 446 as indicated hereinabove, when I turn to the factual matrix of the present case, what attracts the attention is that on 15.07.99, out of the four accused, three accused persons were not present without showing any cause, three witnesses had been produced by the prosecution and it is in such a situation that the learned Trial Court directed issuance of warrant of arrest against the three absentee accused. By this order, dated 15.07.99, the learned Trial Court also directed notices to be issued to the sureties to appear in the Court and produce the accused persons, the date of such appearance being 07.09.99. However, as even the accused, who was present on 15.07.99, did not appear 07.09.99 and no reason was assigned by the Appellants, who were sureties for the accused aforementioned, as to why the accused had not appearance and/or could not be produced by the sureties in the Court, the learned Trial Court directed the sureties-Appellants to show cause as to why the bail bonds should not be cancelled and the amount of the bail bonds be not forfeited. When the case came up for orders on 16.11.99, one of the sureties, namely, Appellant No. 1 herein, filed a petition seeking some more time to produce the accused. However, in view of the fact that there were no satisfactory reasons assigned for seeking some more time to produce the accused and the trial was held up, because of the absence of the accused, the learned Trial Court passed an order, on 16.11.99, giving last chance to the sureties to produce all the four accused, by 01.12.99, failing which the bail bonds would stand cancelled. The learned Trial Court further made it clear that if the sureties failed to produce all the four accused, the amount of the bail bonds shall be realized by putting to sale the sureties properties, which were covered by the bail bonds. The learned Trial Court further made it clear that if the sureties failed to produce all the four accused, the amount of the bail bonds shall be realized by putting to sale the sureties properties, which were covered by the bail bonds. On the date, so fixed, i.e. on 01.12.99, the sureties merely filed a petition seeking some more time to produce the accused. However, in view of the fact that the sureties had been given the last chance to produce the accused, the case was a case of carrying a large quantity of narcotic drugs, the accused were not from the State of Assam and that the accused were, in fact, from different States, the learned Trial Court held that the bonds stood forfeited. I find no illegality committed by the learned Trial Court in holding that the bonds stood forfeited, particularly, when I notice nothing, in the materials on record, reflecting mat the sureties had made out any case indicating that the bail bonds were not liable to forfeiture. In fact, despite repeated opportunity given to them, the sureties failed to show as to why the bail bonds should not be treated as forfeited. 6. Having held that the forfeiture of the bail bonds by the learned Trial Court was legally justified in the facts and circumstances of the present case, I am, now, required to ascertain if the subsequent directions, which the learned Trial Court has passed, on the forfeiture of the bonds, are sustainable in law. 7. For a better understanding of the further directions, which the learned Trial Court gave by the impugned order, dated 01.12.99, the relevant part of these directions are quoted below: For the foregoing reasons the bail bonds executed by Sri Sher Ali and Shri Amir Alam are hereby cancelled. The bail amounts which comes to Rs. 2,00,000/- (Rs. Two Lakhs) i.e. @ Rs. 25,000/- for each accused payable by the two bailors, stands forfeited to the State. Since, the bailors have failed to pay the bail amount today their immovable property covered by the bail bonds are hereby attached and put to sale. The collector, Sonitpur, Tezpur is directed to realize the bail amounts of Rs. 2,00,000/- i.e. Rs. 1,00,000/- from each bailor by selling their immovable property. Since, the bailors have failed to pay the bail amount today their immovable property covered by the bail bonds are hereby attached and put to sale. The collector, Sonitpur, Tezpur is directed to realize the bail amounts of Rs. 2,00,000/- i.e. Rs. 1,00,000/- from each bailor by selling their immovable property. Considering the serious nature of the crime and big amount of surety the Collector is directed to realize the money at the earliest possible. The Collector shall submit a report of realization process within a period of one month to this Court on receipt of the copy of order. Send a copy of this order to the Collector, Sonitpur, Tezpur, for necessary action along with a writ of attachment and sale, fixing on 04.01.2000 for S.R. 8. From a careful reading of the impugned directions, it clearly transpires that on forfeiting the bonds, the learned Trial Court has not directed the Appellants, who were the sureties, to show cause as to why they would not be made to pay the penalty; rather, it merely observed that the bailers had failed to pay the bail amount and, hence, their immovable properties, covered by the bail bonds, are attached and put to sale. The directions, so given, are ex facie illegal and in complete violations of the provisions of Section 446. 9. I have already indicated above that when a bail bond stands forfeited, the Court is required to pass a conditional order, the conditional order being that the bailer shall pay the penalty or show cause as to why he shall not be made to pay the penalty and if the bailer chooses not to show cause and opts to make payment of the penalty, there is no impediment, on the part of the Court, to accept such payment of penalty. If, however, the bailer shows the cause as to why he should not be made to pay the penalty, the Court has to take a decision in the matter and if it, then, directs the surety to make payment of the penalty and when, on being so directed, the surety fails to make payment of the penalty, the same may be realized as fine in terms of the provisions of the Code. In the case at hand, no such conditional order, as indicated hereinbefore, was passed by the learned Sessions Judge. In the case at hand, no such conditional order, as indicated hereinbefore, was passed by the learned Sessions Judge. The learned Sessions Judge, thus, without giving any opportunity to the sureties to show cause as to why they should not be made to pay the penalty, directed attachment of their property and realization of the forfeited amount of the bail bonds by way of sale of the property. The directions, so given, are, if I may reiterate, contrary to the provisions of Section 446. 10. In the result, and for the foregoing reasons, this appeal partly succeeds. While the directions given by the impugned order, dated 01.12.99, forfeiting the bonds are not interfered with, the remaining directions given by the learned Court below are hereby set aside. The learned Court below is hereby directed to pass appropriate conditional order in the matter, as indicated hereinabove, and, then, dispose of the matter in accordance with law. 11. Send back the LCRs with a copy of this order.