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2009 DIGILAW 624 (KER)

Thundichi v. State of Kerala

2009-07-10

A.K.BASHEER, S.R.BANNURMATH

body2009
Judgment :- S.R. Bannurmath, C.J. Doubting the correctness of the law declared by the learned Single Judge in the case of Usman v. State of Kerala (2005 (4) KLT 348) and Geetha v. State of Kerala (2006 (3) KLT 960), this matter has been referred to the Division Bench. 2. Since the question before us is as to the requirement of the procedure to be followed in respect of forfeiture of bond as per S.446 of the Code of Criminal Procedure, it is not necessary to go into the facts of the case. 3. Under S.446 Cr.P.C., there are two types of bonds to be executed - (i) a bond under the Code for appearance or for production of property and (ii) any other bond under the Code. Both stand on the same footing so far as forfeiture is concerned. A bare reading of the section shows that it lays the procedure on forfeiture of such bond on the ground of violation of the conditions therein. It is not much in dispute that the object of taking surety/bond is for the purpose of ensuring availability of an accused before the Court by the surety whenever the date of the trial is fixed. The surety solemnly undertakes before the Court to keep the accused present on all the trial dates. If such an undertaking is broken, the law itself provides for taking stringent steps against the surety as if he is instrumental in allowing the accused to remain absent/abscond. 4. Considering the scope and object of S.446 Cr.P.C., the learned Single Judge in the aforesaid judgments, in the cases of Usman v. State of Kerala and Geetha v. State of Kerala (supra), held that proof of forfeiture of bond is an essential pre-requisite for commencing the proceedings under S.446 Cr.P.C. It is further held that to arrive at a satisfaction that 'the bond has been forfeited', a mere finding that the accused was absent and that his absence is not wilful or wilful may not be sufficient. It is laid down that the Court must satisfy itself that the absence was not only wilful, but such absence was with a view to hinder the course of a smooth trial and to defeat the purpose of bond and as such before holding that the bond is forfeited, the Court must record not merely how and on what basis it arrived at the satisfaction that the bond has to be forfeited, but to record the grounds of such proof and only thereafter the Court can proceed to take further steps under S.446 Cr.P.C. According to the learned Single Judge in the aforesaid judgments, failure to comply with these mandatory requirements, i.e., recording the finding as to the wilful default and non-recording the proof and consideration thereof before forfeiture of bond is an illegality as it contravenes the mandatory provisions of S.446 Cr.P.C. 5. Doubting the aforesaid dictum, another learned Single Judge has, as already noted, referred the matter to the Division Bench for consideration. 6. In our view, no elaborate discussion is required so far as the requirements and the procedure under S.446 of the Code are concerned. The section, which reads thus - "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 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. Explanation.-- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred. Explanation.-- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred. (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: Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months. (3) The Court may, after recording its reasons for doing so, 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 S.106 or S.117 or S.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 S.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." and the Form 45 provided for the execution of the bond, makes it clear that the bond, which is in two parts, viz., one by the accused himself undertaking to attend before the Court on every day on which the trial is held and in case of default, he binds himself to forfeit the bond amount, and the second part is, the declaration by the surety solemnly ensuring the Court that the accused, on whose behalf the surety is undertaking, would be present on all the dates of trials and in case of his making default therein, the surety binds himself to forfeit to the Government the amount of the bond indicated. 7. 7. On perusal of the provision and the Form No.45 of the bond, it is clear that as soon as there is default by the accused in not keeping himself present in the Court on the date of trial, the bond gets automatically forfeited. The law does not provide any requirement of the satisfaction to be arrived at by the Court as to whether the absence is wilful or not. At this stage, there is also no requirement prescribed as to the Court to get satisfied itself by giving an opportunity, either to the accused or to the surety, thereof. In the case of bond for appearance, the court on its own observation is able to see whether the accused is present or not and if he is not present, it has to proceed under S.446 to declare the bond automatically forfeited. In our view, no independent proof is necessary at this stage and it would be a meaningless formality to take evidence as to the obvious fact of the absence of the accused before the court on the day of the trial. The question whether the absence is wilful or not is immaterial at that stage, since the accused and the surety are together bound themselves to have the presence of the accused on that day and as such mere absence itself would entitle the bond to be forfeited. The latter part of Form 45 if looked into in this regard and especially the words "in case of his making default herein, I hereby bind myself to forfeit to Government the sum of rupees ………." indicate that both the accused and the surety are aware of the-fact that mere absence, for whatever reasons, wilful or not, by the very absence of the accused would result in only one situation, viz., forfeiture of the bond. As such, for this purpose; in our view, there need not be any opportunity given to the surety or any proof or evidence in respect of the explanation of the accused or the surety as to whether the absence was wilful or not need not be gone into. 8. As such, for this purpose; in our view, there need not be any opportunity given to the surety or any proof or evidence in respect of the explanation of the accused or the surety as to whether the absence was wilful or not need not be gone into. 8. Moreover, this so-called opportunity to the surety for the absence of the accused is provided at the later stage, i.e., under sub-s.(2) of S.446 Cr.P.C. It is only at the stage of payment of penalty the law itself provides an opportunity and if sufficient cause is not shown, penalty is bound to follow, apart from the forfeiture of the bond amount. Under sub-s. (3) of S.446, it is also provided that the Court, after giving an opportunity to the surety, has a discretion to either levy or not any penalty and even remit any portion of the penalty and enforce the payment in part only. 9. On detail reading of the entire provision, in our view, forfeiture of the bond on mere physical absence of the accused results in automatic forfeiture and there need not be any enquiry, including any opportunity to the surety be given at that stage or there is any requirement to consider any explanation in this regard, especially when that stage is provided later, as can be seen from sub-s.(2) and (3) of S.446 Cr.P.C. 10. In view of our aforesaid finding, we find that the learned Single Judge, while laying down the law in the cases of Usman v. State of Kerala and Geetha v. State of Kerala (supra), has travelled beyond the scope of the provision itself. Our observation is further fortified by an earlier pronouncement of this Court in the case of Kafoor Raja v. State of Kerala (1973 KLT 45) wherein it is held thus: "In the case of a bond for appearance before a court, the cause for forfeiture thereof arises immediately on the failure on the part of the person bound by the bond to appear in court at the appointed time or on the appointed day, as no further proof regarding the breach of the conditions is called for. In the case of a bond for keeping the peace or for good behaviour, the position is different for obvious reasons; proof becomes necessary for the Magistrate to satisfy himself that there has been breach of the conditions of the bond before an order forfeiting the bond could be passed. A fact could be said to be proved only when, its existence is proved according to the provisions contained in the Evidence Act. It, therefore, appears to our mind that the satisfaction based on proof contemplated by sub-s.(1) of S.514 is not mere subjective satisfaction. The Magistrate cannot also allow the satisfaction required to be reached by him by a judicial process, to be substituted by prima facie satisfaction of some one else, like the Sub Inspector in the present case. Prudence dictates that, to conform to the spirit of the provisions contained in the sub-section, the Magistrate should insist on better proof without resting content with the report of the Police Officer or his evidence based on hearsay information, when it is a question of forfeiture of a bond. The examination of at least one person who had direct knowledge about the alleged involvement in the crime of the person whose bond is sought to be forfeited would tend to minimise the chances for abuse of process by interested persons. Of course, the standard of proof required in proceedings like this may not necessarily be equal to that required in a case for conviction of an accused. In appropriate cases even affidavits by persons having direct knowledge about the incident may serve the purpose, provided the persons swearing to such affidavits would be made available for cross-examination if the correctness of the averments is disputed by the persons against whom such affidavits are to be used. To dispense with such proof absolutely and placing reliance solely on the police report or the evidence of the police officer, who claims to have no direct knowledge about the actual involvement of the accused, would lead to an awkward situation, and miscarriage of justice, particularly in a case which ultimately ends in discharge or acquittal. In the present case, the Magistrate had before him no legal evidence given by any person who claimed to have direct knowledge about any illegal act attributed to the persons bound by the bond, and in that view the forfeiture of the bond cannot be upheld." 11. In the present case, the Magistrate had before him no legal evidence given by any person who claimed to have direct knowledge about any illegal act attributed to the persons bound by the bond, and in that view the forfeiture of the bond cannot be upheld." 11. Considering all these aspects, we answer the reference by holding that the law laid down by the learned Single Judge in Usman v. State of Kerala and Geetha v. State of Kerala (supra) does not reflect the correct position. Hence they are overruled. We hold that there is absolutely no necessity of recording any satisfaction, reason and proof at the automatic stage of forfeiture of the bond, as the mere absence of the accused on the date fixed would result automatically in the forfeiture of the bond. Answering the reference aforesaid, we remit the matter to the learned Single Judge to consider the case on its merits and in the light of the observations made by us.