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2012 DIGILAW 410 (HP)

Prakash Chand v. State of Himachal Pradesh

2012-07-27

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. 1. In Sessions trial No. 20 of 2008 u/s 20 of the narcotic Drugs and Psychotropic Substances Act, 1985, Smt. Shashi @ Saroj was one of the accused for whom Shri Parkash Chand appellant herein, stood surety and executed the bond dated 30.10.2007 which was accepted and attested by the then Special Judge, Mandi. Various notices/ warrants issued from time to time, bounced-back as the accused was not traceable, as such vide order dated 28.6.2011, proceedings against accused Shashi @ Saroj as well as her surety were initiated. Consequently, the learned Special Judge issued show-cause notices to both of them affording opportunity to put their case as to why the bonds furnished by them be not cancelled and forfeited to the State. The proceedings against the appellant-surety were registered as Cr. M. A. No. 101/2011 and adjourned for 29.7.2011. The surety Shri Prakash Chand put in appearance, sought and allowed adjournment. Finally he filed his reply to the show-cause notice aforesaid stating therein that accused fell ill and she could not attend the court. The case was adjourned for 7.9.2011 for consideration. 2. It appears that reply skipped notice of the learned Special Judge and adjourned the case repeatedly for reply of the surety/appellant. Ultimately on 22.10.2011, statement of surety/ appellant was recorded vide which he stated that except the above reply, he had nothing to say. The learned Special Judge thereafter proceeded to forfeiting the bond imposing penalty by the order reproduced hereunder:- 22.10.2011 Present: Sh. Ajay Thakur, Ld. APP for the State Sh. Vikas Sharma, Advocate, for the respondent Prakash Chand. Heard. The respondent Prakash Chand stood surety for accused Shashi @ Saroj in the present case by furnishing surety bond in the sum of Rs. 20,000/- by undertaking to produce the accused Shashi @ Saroj, one of the accused in the Sessions Trial No. 20 of 2008 registered under Sections 18 and 29 of ND & PS Act. The accused Shashi @ Saroj was released on bail when she furnished bail bond in the sum of Rs. 20,000/- with two sureties of the like amount. Respondent Prakash Chand stood surety for her by giving the undertaking that he will produce the accused on each and every date. The accused Shashi @ Saroj was released on bail when she furnished bail bond in the sum of Rs. 20,000/- with two sureties of the like amount. Respondent Prakash Chand stood surety for her by giving the undertaking that he will produce the accused on each and every date. The similar type of undertaking was also given by the accused but she did not appear in this Court on 25.2.2010, thereafter, her presence was secured through non-bailable warrants and ultimately on 28.6.2011 the proceeding u/s 446 Cr.PC were ordered to be initiated against the accused Shashi @ Saroj as well as against her sureties. On 29.8.2011, accused Shashi @ Saroj was produced in pursuance to the non-bailable warrants issued from this Court. Respondent Prakash Chand put his appearance on 29.7.2011, thereafter he filed his reply disclosing therein that the accused Shashi @ Saroj is an aged lady and she could not appear before this Court due to illness and he prayed that no action be taken against him. Today, the respondent vide his separately recorded statement stated that he does not want to say anything else in this case. The accused Shashi @ Saroj was ordered to be released, keeping in view the solemn statement as well as the undertaking given by respondent Prakash Chand in the surety bond and he also undertook to pay a sum of Rs. 20,000/- in default of the terms and conditions of the surety bond by the accused. The respondent has not kept his word and it is proved on the file that accused Shashi @ Saroj fails to appear on 25.2.2010 and her presence could only be secured through coercive method, i.e., issuance of non-bailable warrants, she and her presence could be secured after about one and half years. No concrete efforts have been made by the respondent to secure the presence of accused Shashi @ Saroj. After putting appearance before t his Court on 29.7.2011, in pursuance to the notices issued u/s 446 Cr.PC, he made no efforts to produce the accused Shashi @ Saroj except seeking adjournments. This court is not satisfied with the explanation given by the respondent in his reply, hence, the surety bond are ordered to be forfeited to the State of H. P and consequently, a sum of Rs. 20,000/- has been imposed upon respondent as penalty. This court is not satisfied with the explanation given by the respondent in his reply, hence, the surety bond are ordered to be forfeited to the State of H. P and consequently, a sum of Rs. 20,000/- has been imposed upon respondent as penalty. Respondent deserves no leniency as he fails to keep his word as well as solemn undertaking given by him. (Emphasis supplied) 3. The case was thereafter adjourned for 23.11.2011 for the payment of the penalty amount without any show-cause as to why the penalty amount be not recovered. Since the amount was not paid, the learned Special Judge sent a letter to the Collector, Mandi for recovery. Hence the challenge in the present appeal. 4. A perusal of the relevant record shows that the learned Special Judge did not adhere to the procedure laid down u/s 446 of the Code of Criminal Procedure, in short 'the Code'. 5. The Section aforesaid refers to the two kinds of bonds;- (i) The bond under the Code for appearance or for production of property and; (ii) Any other bond under the Code. But however, both stand on the same footing so far as the forfeiture is concerned. 6. The Section aforesaid lays down the procedure on forfeiture of such bond. In terms of the provisions of Section 446 of the code, before issuance of show cause notice to the surety, the Magistrate is to satisfy himself that there is a prima facie material for such forfeiture of bond and, before forfeiture and issue of distress warrant, an opportunity should be given to the surety. In other words, two ingredients are to be fulfilled, the first one is the proof that the bond has been forfeited and record of the grounds of proof and, second step is calling upon the surety to pay penalty or to show cause as to why necessary orders should not be passed in terms of the related bond(s) and the reasons for that satisfaction must be recorded in writing. This is the real legal meaning and the procedure to be followed by a competent Court/Magistrate. 7. Significantly, in the instant case, impugned order culminated into the forfeiture of bond and imposing penalty without giving any opportunity to substantiate his reply regarding illness of the accused, and no opportunity to show-cause was given for its recovery. This is the real legal meaning and the procedure to be followed by a competent Court/Magistrate. 7. Significantly, in the instant case, impugned order culminated into the forfeiture of bond and imposing penalty without giving any opportunity to substantiate his reply regarding illness of the accused, and no opportunity to show-cause was given for its recovery. Thus, in my opinion, the learned Special Judge had not correctly adopted the procedure, which resulted into the passing of impugned order. Otherwise also, the accused in the meantime had put in appearance and fresh bonds were taken and on merits, she stands acquitted in the main case. For the aforesaid reasons, the impugned order passed by the learned Special Judge directing the surety-appellant to deposit the bond amount and issuance of distress warrant to the Collector, both are wholly unjustified without recording any reason and show-cause. Therefore, the appeal is allowed. The impugned order dated 22.10.2011 and the subsequent orders thereto including the issuance of distress warrant are quashed and set aside.