Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1261 (MP)

Prabhu Nai v. State of M. P.

2008-10-24

U.C.MAHESHWARI

body2008
JUDGMENT 1. This appeal is directed by the surety Prabhu Nai under section 449 of Criminal Procedure Code (in short 'CrPC'), being aggrieved by the order dated 21.10.2002, passed by First Additional Sessions Judge, Guna in M.J.C. No. 155/2002, whereby the direction to recover the sum of the surety Rs. 50,0001- from the appellant has been given. 2. The facts giving rise to this appeal in short are that in compliance of some bail order of accused Vijay Kapse W/o Sambharao, R/o Choudaran Colony, Guna the present appellant had furnished the surety of Rs. 50,000/- for her on 25.11.200 I, such surety was given to keep present such accused regularly in S.T. No. 19/2002 pending in the aforesaid Court. Subsequent to furnishing such surety aforesaid accused on account of her illness could not appear in such S.T. on 11.10.2002.Although the application for giving exemption from appearance was filed by his counsel under section 317 of CrPC. The papers regarding illness of accused were also annexed with that. However, on consideration such application was dismissed and the direction for initiating the proceeding to recover the aforesaid sum Rs. 50,000/- from the appellant was given. In compliance of such direction a show cause notice under section 446 of CrPC was issued against the appellant, on receiving the same, it was replied along with the papers regarding treatment of the accused showing that due to sufficient cause accused could not appear on the date of the appearance, on which the direction for recovery of aforesaid sum was given. Such reply was not found satisfactory and the direction to recover such amount of surety was given. Being aggrieved by such order, the appellant has come with this appeal. 3. Shri T.c. Bansal, learned appearing counsel of the appellant assailed the impugned order saying that the trial Court has failed to consider the reply of the appellant in accordance with the provision of section 446 of CrPC. In view of the reply of show cause notice and annexed papers, the trial Court ought to have given an opportunity to the appellant to adduce the evidence before the Court. In any case, without extending the opportunity for adducing the evidence to the appellant his objections have been dismissed under wrong premises. In view of the reply of show cause notice and annexed papers, the trial Court ought to have given an opportunity to the appellant to adduce the evidence before the Court. In any case, without extending the opportunity for adducing the evidence to the appellant his objections have been dismissed under wrong premises. With these submissions, he prayed for allowing the appeal and in alternative also prayed for remanding back the matter for afresh disposal in accordance with law by extending the sufficient opportunity to lead the evidence to the appellant. 4. Aforesaid prayer is opposed by the State counsel saying that the impugned order is based on proper appreciation of the available circumstance and also is in conformity with law, it does not require any interference at this stage and prayed for dismissal of the appeal. 5. Having heard the counsel, after perusing the record and the impugned order, I am of the considered view that the trial Court has committed grave error in passing the impugned order for recovery of Rs. 50,000/- without extending the opportunity to adduce the evidence to the appellant in respect of his aforesaid reply of notice. It appears that the impugned order has been passed under section 446 of CrPC. Such provision speaks that such amount could be recovered, if sufficient cause is not shown by the person like surety. In view of the provision of section 446 of CrPC on examining the present case, it is apparent that concerning accused of the Session Trial for whom the surety was given by the appellant did not appear on a single date i.e. 11.10.2002. Although, an application for exemption was filed on her behalf but the same was dismissed with a direction for initiating the proceedings to recover the sum of Rs. 50,000/- from the surety. In compliance of such order, the case was registered and show· cause notice was given to the appellant. Subsequent to it, on filing the reply of such notice by the appellant along with some papers regarding disease and illness of said accused the same were not considered while passing the impugned order. 50,000/- from the surety. In compliance of such order, the case was registered and show· cause notice was given to the appellant. Subsequent to it, on filing the reply of such notice by the appellant along with some papers regarding disease and illness of said accused the same were not considered while passing the impugned order. It appears that soon after filing the reply of show cause notice on the same day without extending any opportunity for adducing the evidence to the appellant his objections were dismissed contrary to the procedure provided under the law and also contrary to the principle of natural justice. Thus, the impugned order could not be termed to be a speaking order. 6. On earlier occasion such question came before the High Court of Kamataka in the matter of S. Hiranyappa v. State of Karnataka reported in 1997 CrLJ 4691 , the same was answered by such Court as under: "4. Under section 446 of CrPC suryty bond can be forfeited only after the Court has satisfied that there is breach of the conditions in the bond and if he fails to show sufficient cause. In this regard, section 446, sub-sections (1) and (2) may be seen. Section 446, sub-section (1) reads as follows: "446. Procedure when bond has been forfeited: (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 bonds 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." By these provisions, it is clear that the Court must be satisfied that sufficient cause is not shown by the respondent-surety for not obeying the terms of the bond. It necessarily implies that an opportunity should be given to the surety to adduce his evidence in support of his stand taken in the proceeding. It appears, neither of these requirements have been complied with in this case. It necessarily implies that an opportunity should be given to the surety to adduce his evidence in support of his stand taken in the proceeding. It appears, neither of these requirements have been complied with in this case. Firstly, the order is not clear as to whether the surety-respondent before the lower Court filed his written objections. Secondly, the order does not disclose that the surety was given an opportunity to examine himself and adduce such other evidence as may be necessary in support of his stand. I, therefore, find that the impugned order cannot be sustained. It has to be set aside and the matter has to be remanded for fresh enquiry and decision in accordance with law." 7. In the present case, the principle laid down in the aforesaid case is directly applicable as in the case at hand, the trial Court did not proceed to examine the sufficient cause for recalling the show cause notice in view of the grounds stated in the reply of the appellant. 8. In the above cited case, considering the identical situation as involved in the case at hand, after setting aside the order of the trial Court the case was remitted back to decide afresh by extending the opportunity to the concerned appellant to adduce the evidence. 9. In view of the aforesaid discussion, it is held that the trial Court committed grave error in passing the impugned order, the same is not sustainable 10. Therefore, by allowing this appeal in part, the impugned order is aside and the case is remitted back to the trial Court with a direction aside afresh after extending the opportunity to adduce the evidence he parties with respect of the grounds mentioned in the reply of aforesaid show cause notice. However, it being an old case the trial Court directed to take endeavour to conclude the same on or before 31.3.2009 under intimation to this Court. The parties are directed to appear before trial Court on 24.11.2008 to assist for early disposal of the case in compliance of the aforesaid direction. 11. Appeal is allowed in part as indicated above.