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2014 DIGILAW 372 (ORI)

Dhaneswar Sahoo v. State of Orissa

2014-06-20

S.K.MISHRA

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Order 20.6.2014 - Heard Mr. Himansubhusan Dash, learned counsel for the appellants-petitioners, and Mr. Anupam Rath, learned Addl. Standing Counsel for the State. 2. This is an appeal against the order dated 27.4.2007 passed by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Bhubaneswar in, Crl. Misc. Case No. 1/2006 directing each of the appellants-petitioners to pay Rs. 25,000/- only as penalty under Section 446 sub-clause (2) of the Code of Civil Procedure, 1973 (hereinafter referred to as the "Code" for brevity). 3. The facts are not in dispute. The present appellants stood sureties for accused Sidheswar Mallik, who was charged under the provisions of the N.D.P.S. Act, in S.T. Case No. 17/150 of 1995 of the Court of learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Bhubaneswar. They executed bail bonds undertaking to produce the aforesaid accused, failing which they were to remit a sum of Rs. 25,000/- to the State. The case was posted to 02.08.2006 and on that date Sidheswar Mallik, was not present. Reminder was issued to the IIC Airfield P.S. to execute the N.B.W. and produce the accused. The bail bonds were forfeited on that date. Thereafter a separate Misc. Case bearing Crl. Misc. Case No. 1/2006 was initiated and notices were issued to the bailors-present appellants to show cause as to why the bail amount shall not be realized from them. After several adjounrnments, the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Bhubaneswar held that the petitioners have no cause to show and, therefore, directed that each of them is to pay Rs. 25,000/- as penalty under Section 446(2) of the Code and, accordingly, he issued distressed warrant for realization of the same. 4. It is borne out from the record that in the meantime, on 7.3.2007 the accused surrendered himself in S.T. Case No. 17/150 of 1995 and filed a petition for bail. His petition for bail was allowed on that day and he was order to be released on bail. On the next date i.e. on 8.3.2007 the accused furnished bail bonds, the same was accepted and he was released on bail. 5. Relying upon the reported cases of Manindra Kumar Majumdar v. Emperor, AIR (30) 1943 Calcutta 236 and Narata Ram v. State of Himachal Pradesh; 1994 Crl. On the next date i.e. on 8.3.2007 the accused furnished bail bonds, the same was accepted and he was released on bail. 5. Relying upon the reported cases of Manindra Kumar Majumdar v. Emperor, AIR (30) 1943 Calcutta 236 and Narata Ram v. State of Himachal Pradesh; 1994 Crl. LJ 491, learned counsel for the appellants submits that before forfeiting the bail bond the appellants should have been issued a notice to produce or to show cause why the accused did not remain present on date the case was posted. 6. In the case of Manindra Kumar Majumdar v. Emperor (supra) the Court held that in the absence of any notice calling upon the surety to produce the accused, it cannot be said that the surety failed to perform the conditions of the bond. Consequently, there was no justification for forfeiture of the bond. 7. In the case of Narata Ram v. State of Himachal Pradesh (supra), the High Court of Himachal Pradesh held that passing of composite order of forfeiture and grant of fresh opportunity to surety to produce the accused was not proper because by passing such composite order the Court neither gave the surety of an opportunity to produce the accused nor satisfied itself as to existence of any grounds for directing the forfeiture of surety bonds. 8. In course of hearing learned Mr. Rath, learned Addl. Standing Counsel, brought to the notice of this court to the reported case of Suryanarayan Mohapatra v. State of Orissa; (1989) 2 OCR 168, wherein this Court has held that it is now far too well settled in law that the principles of natural justice, i.e. giving opportunity to be heard before an adverse order is passed, is to be read into a statute even though there is no express provision therein for complying with the same unless the context of the statute excluded the rule of audi alterarn partern. The Court further held that in other words, the rule of hearing a person is of universal application and is to be read as a provision of all statutes except where, because of specific contingencies, affording such opportunity is rendered impossible or impracticable. The Court further held that in other words, the rule of hearing a person is of universal application and is to be read as a provision of all statutes except where, because of specific contingencies, affording such opportunity is rendered impossible or impracticable. Holding thus this Court has categorically held that the direction to forfeit the bond involves a process of decision making independent of the notice as to why the amount under the bond shall not be recovered from the executant. Therefore, it was further held that before such a decision is taken a hearing to the affected party becomes the demands of natural justice. Therefore the Court held that the order to forfeit the bond without notice is illegal and is not sustainable in law. 9. Admittedly in this case before the order forfeiting the bond was passed on 2.8.2006 no notice has been issued to the appellants to show cause why the bail bonds should not be forfeited. 10. In that view of the matter, applying the ratio decided in the aforesaid cases, this Court comes to the conclusion that the order of forfeiture of bail bonds is illegal and not sustainable and consequently the order imposing penalty of Rs. 25,000/- each on the appellants is not sustainable. 11. Accordingly, the appeal is allowed. The order dated 27.4.2007 passed by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Bhubaneswar in Crl. Misc. Case No. 1/2006 is hereby set aside. Appeal allowed.