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2010 DIGILAW 106 (ORI)

Akura Nayak v. State of Orissa

2010-02-19

S.K.MISHRA

body2010
JUDGMENT S.K. MISHRA, J. — In this Appeal, the appellant calls in question the order passed on 18.12.2006 by the learned Adhoc Addl.Sessions Judge, Fast Track Court, Khurda in S.T. Case No.94/535 of 2004, wherein the learned Court below forfeited the bail bond filed by him and ordered for realisation of the bail amount from him. 2. The appellant stood as surety for the accused persons in S.T. Case No.94/535 of 2004 for bail bond of Rs.10,000/- each. After completion of trial, the learned Adhoc Additional Sessions Judge, Khurda, as per his judgment dated 9.11.2006 convicted the four accused persons. On their application, learned Court below allowed them to remain on bail by resorting to the provision under Section 389 of the Code of Criminal Procedure, 1973 (here¬inafter referred to as “Code” for brevity) and to obtain an order of bail from the High Court within thirty days. Accordingly, on 9.11.2006, the appellant stood as surety for the convicts for bail amount of Rs.10,000/- each with an undertaking to produce the accused persons at the end of the period. The convicts pre¬ferred Appeal before this Court in Criminal Appeal No.521 of 2006 and this Court took up the matter on 13.12.2006. This Court admitted the Appeal, called for the L.C.R. and in Misc. Case No.1116 of 2006 directed to release of the convict-appellants. In the meantime, period of thirty days as stipulated by the learned Adhoc Addl. Sessions Judge, Khurda had expired. On 8.12.2006 the convicts were absent. An application under Section 317 of the Code was filed alongwith one application for extending time. Rejecting both petitions, the trial Court issued Warrant against the convicts and also noticed the present appellant to show cause why the entire bail amount of Rs.40,000/- shall not be realized from him. The case was then posted to 19.12.2006. 3. While the matter stood thus, after obtaining the certified copies of the orders passed by this Court in Criminal Appeal No.521 of 2006, the convicts appeared before the learned Addl.Sessions Judge on 18.12.2006 and prayed to be released on bail on such terms and conditions as deemed just and proper. On the same date, the appellant filed a written show cause in reply to the notice issued to him. On the same date, the appellant filed a written show cause in reply to the notice issued to him. Main cause shown by the appellant was that he had instructed the convict-accused persons to appear before the Court below but the convicts could not obtain the certified copies of the order of the appellate Court in time and prayed for adjournment before the learned Addl.Sessions Judge. It is also pleaded by the appellant that the convicts had already surrendered before the trial Court at his behest and hence, he had already discharged his duties. Learned Addl. Sessions Judge considered the cause shown by him as not satisfactory and hence, he ordered for initiating a separate Misc. Case against the delinquent for realisation of the bail amount from him. Such portion of the order dated 18.12.2006 is challenged in this ap¬peal. 4. Law is well settled that, before a surety is made liable to pay the amount of the bond forfeited, it is necessary to give notice to show cause why the amount should not be realized from him and if he fails to show sufficient cause, only then can the Court proceed to recover the amount from him. (Purna Chandra Pradhan v. State of Orissa and another, 1988 (II) OLR 308). In this case, learned Adhoc Addl.Sessions Judge, Khurda issued notice to the surety. The surety filed a show cause. Learned Addl. Sessions Judge, however, did not accept the grounds shown by him to be satisfactory, and hence he ordered that a separate Misc. Case be started against the bailer for realization of the bail amount. 5. The Section 446 of the Code embodied the principle of natural justice and the maximum audi alteram partem rule. It is evident from the expression “to show cause why it should not be paid”. Before any adverse order is passed against any person, a reasonable opportunity must be given to him to put forth his case. Such rule does not mean that only a notice to show cause will be sent to the person concerned to file his written show cause. It also means that the Court must give a hearing and consider the cause shown by him and then decide whether it is sufficient or not. 6. Learned Adhoc Addl. Sessions Judge adopted the correct procedure by issuing notice to the bailer. It also means that the Court must give a hearing and consider the cause shown by him and then decide whether it is sufficient or not. 6. Learned Adhoc Addl. Sessions Judge adopted the correct procedure by issuing notice to the bailer. However, while disposing the matter, he has not applied his mind to consider, if the cause shown by him is sufficient or not. In fact, in the impugned order, he has not reflected the cause shown by the appellant. There is no discussion of the grounds taken by him, which in the considered opinion of this Court, is not proper. The requirement under Section 446 provides that after recording ground forfeit the bond, the Court may call upon the person bound by such bond to pay the penalty thereof or show-cause why it should not be paid is not an empty formality. Rather, it is a very sub¬stantive right in favour of the bailor. 7. It is evident from the record, in this case, that after convicting the accused persons on 09.11.2006, learned Adhoc Addl. Sessions Judge allowed the appellant to remain on bail by resorting to the provision of Sub-section (3) of Section 389 of the Code. The Court allowed the convicts to prefer an appeal and to apply for bail by granting time till 08.12.2007. In fact, the appellants have preferred an appeal before this Court on 20.11.2006. Instead of filing of appeal, learned counsel preferred, inadvertently, a Criminal Revision, which was registered as Criminal Revision No.1043 of 2006. Thereafter, on 28.11.2006, on the prayer in Misc. Case No.1685 of 2006, this Court allowed the Criminal Revision to be registered as a Criminal Appeal. Again, the case could be taken up only on 13.12.2006, wherein the application for bail under Section 389 of the Code filed by the appellants could be considered and they were allowed to be released on bail on such terms and conditions as deem just and proper by learned Adhoc Addl.Sessions Judge. 8. In the meantime, on 09.12.2006, learned counsel for the convicts filed a petition under Section 317 of the Code for dispensing with the presence of the convicts and also filed a time petition for extending time of obtaining the order of bail from this Court. Their petitions were rejected by the learned Adhoc Addl.Sessions Judge. 8. In the meantime, on 09.12.2006, learned counsel for the convicts filed a petition under Section 317 of the Code for dispensing with the presence of the convicts and also filed a time petition for extending time of obtaining the order of bail from this Court. Their petitions were rejected by the learned Adhoc Addl.Sessions Judge. Non-bailable warrants were issued against the convicts and the present appellant was noticed to show cause why the bail amount shall not be realized from him. On 18.12.2006 the convicts appeared before the learned trial Court and they were released on bail. But the show cause filed by the bailor was not accepted by the learned Adhoc Addl.Sessions Judge. Ultimately, the accused persons appeared before the learned trial Court. Their non-appearance in the Court on 09.12.2006 does not seem to be intentional because their counsel was present in the Court and in fact, he had filed a petition under Section 317 of the Code for representation. In view of the fact narrated above, the order of the appellate Court could not be obtained in due time and for that reason, the learned counsel for the appellant prayed for extension of the time. It was within the jurisdiction of the learned trial Court to extend such time. It is noted that in Sub-section (3) of Section 389 of the Code it is provided that on fulfilling of certain conditions the convict persons be released on bail for such period as will afford sufficient time to present the appeal and obtain orders of the appellate Court. So, in that view of the matter, the approach adopted by the learned Adhoc Addl. Sessions Judge does not appear to be justice oriented, and hence requires interference. Thus, holding that the cause shown by the surety to be sufficient, this Court sets aside the order dated 18.12.2006, inasmuch as, it relates to the realization of the bail amount from the appellant. The Criminal Appeal is accordingly allowed. Crl. appeal allowed.