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2014 DIGILAW 862 (HP)

Balandu v. State of H. P.

2014-07-08

DHARAM CHAND CHAUDHARY

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Judgment : Dharam Chand Chaudhary, Judge(oral) This order will dispose of both the above titled petitions arising out of a common judgment dated 20.12.2013, passed by learned Additional Sessions Judge (II), Una, Camp at Amb in Criminal Appeal Nos. 3 and 4 of 2010, whereby the order dated 8.1.2010, passed by learned Judicial Magistrate, 1st Class, Amb, in the proceedings under Section 446 Cr. P.C., imposing penalty to the tune of Rs.1,00,000/- upon each of the petitioners by forfeiting the surety bonds, has been affirmed and the appeals dismissed. 2. The principal accused in the case is Alaf Deen. He was tried for the commission of an offence, punishable under Sections 41 and 42 of the Indian Forest Act and Section 379 of the Indian Penal Code, however, ultimately acquitted of the said charge. The prosecution though assailed the judgment of acquittal by filing an appeal in the Court of learned Sessions Judge, Una, however, unsuccessfully. The revision preferred in this Court also met the same fate. The record reveals that during the pendency of the appeal, the case property, i.e. the truck, bearing registration No.HIU-1837 impounded by the police during the course of investigation was ordered to be released to the registered owner, i.e. the principal accused Alaf Deen, on furnishing his own bond in the sum of Rs.1,00,000/- with two sureties in the like amount undertaking specifically to produce the same as and when called upon to do so. Both the petitioners stood surety to ensure the production of the vehicle in question by the principal accused, as and when required to do so by the Court. 3. The judgment passed by this Court on 31.5.2000 in Cr. Revision No.77 of 1998, reveals that while dismissing the same, the principal accused Alaf Deen was directed to produce the case property, i.e. the truck aforesaid before the trial Court, within four weeks. Meaning thereby that the truck was to be produced on or before 28th June, 2000. He, however, failed to produce the same within the stipulated period and rather produced on 10.7.2000. 4. Learned trial Judge found that the truck was tampered with being not in the same condition when it was ordered to be released to the accused. Anyhow, till that stage both the petitioners were not party either before the High Court or before learned trial Judge. 4. Learned trial Judge found that the truck was tampered with being not in the same condition when it was ordered to be released to the accused. Anyhow, till that stage both the petitioners were not party either before the High Court or before learned trial Judge. It is after production of the truck by the principal accused Alaf Deen, the proceedings under Sections 446 Cr. P.C. were ordered to be initiated against both of them. They were served with show cause notice. In response thereto, their stand was that the truck was produced by the principal accused in the trial Court on 10.7.2000 and the custody thereof handed over to the police. Therefore, the show cause notice issued against them was sought to be discharged and the proceedings dropped. 5. Learned trial Magistrate after taking on record the evidence produced by both the petitioners has arrived at a conclusion that since they had undertaken to produce the truck before the Court as and when required to do so and as the same was produced by the principal accused beyond the period granted by this Court vide judgment dated 31.5.2000, while deciding Cr. Revision No.77/1998, therefore, the bonds executed by them stood forfeited to the State. Consequently, penalty of Rs.1,00,000/- has been imposed against each of the petitioners. Learned Sessions Judge has also arrived at a similar conclusion while deciding the appeal vide judgment dated 20.12.2013 impugned in these petitions. 6. The legality and validity of the impugned judgment has been questioned on various grounds, however, mainly that the same being violative of principles of natural justice is not legally sustainable. It has been submitted that the direction was to the owner of the truck, i.e. Alaf Deen, to produce the truck within four weeks in the trial Court and the petitioners were not party before the High Court. Also that before production of truck by the principal accused, they were never served with a show cause notice, calling upon them to produce the same. It has, therefore, been submitted that the surety bonds they furnished could have neither been forfeited nor the penalty imposed upon them. 7. At the outset, be it stated that the scope of revisional jurisdiction vested in this Court under Section 397/401 Cr. P.C. is limited one. It has, therefore, been submitted that the surety bonds they furnished could have neither been forfeited nor the penalty imposed upon them. 7. At the outset, be it stated that the scope of revisional jurisdiction vested in this Court under Section 397/401 Cr. P.C. is limited one. Normally the findings recorded by the Courts below on appreciation of evidence should not be interfered with and the interference is warranted only in the cases of jurisdictional error or when there is patent or inherent illegality on the face of the record. 8. Having gone through the record and also analyzing the rival submissions, the sole question, which needs adjudication in this petition is as to whether in the given facts and circumstances, both the Courts below were justified in forfeiting the bonds executed by both the petitioners and imposing penalty of Rs.1,00,000/-, i.e. the bond-money, upon each of them or not. This question takes us to the provisions contained under Section 446 Cr. P.C. , which read 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 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.” 9. The plain reading of Section 446 Cr. P.C. makes it crystal clear that where the Court is satisfied that the bond executed for appearance or for production of property stands forfeited, it shall record the grounds of its satisfaction, in writing, and call upon the person bound by such bond to pay the penalty or to show cause why it should not be paid by him. In the case in hand, this Court while deciding Cr. In the case in hand, this Court while deciding Cr. Revision No.77/1998, vide judgment dated 31.5.2000 had directed the principal accused Alaf Deen to produce the truck before the trial Court within four weeks. The petitioners were not the party in the revision petition before this Court. Learned trial Court never served them with a notice in terms of the judgment of this Court to ensure production of the truck by Alaf Deen, within the time granted by this Court, failing which to suffer with the forfeiture of the surety bonds they had executed. Of course, the truck was not produced by Alaf Deen within the time granted by this Court vide judgment dated 31.5.2000 and rather the same was produced on 10.7.2000, i.e. after the expiry of 11-12 days. When the truck was produced by the principal accused, there was no occasion to learned trial Magistrate to have initiated proceedings under Section 446 Cr. P.C. thereafter. The delay so occurred in production of the truck was on the part of the principal accused Alaf Deen and it is he who could have been proceeded against in accordance with law for non-compliance of the directions in the judgment of this Court. Even if any tampering was found with the truck in question, qua that also, it is the principal accused who being the registered owner and custodian of the truck was responsible. The initiation of the proceedings under Section 446 Cr. P.C. after production of the truck is unknown to law. Merely on account of the failure of the principal accused to produce the truck within the stipulated period, neither the surety bonds executed by the petitioners could have been forfeited nor the penalty imposed upon each of them. 10. Both the Courts below, therefore, have not appreciated the legal as well as factual position in its right perspective and passed the order of forfeiture of surety bonds in a cursory manner and completely in contravention of the provisions contained under Section 446 Cr. P.C. as well as mechanically and without application of mind. The impugned order, therefore, is neither legally nor factually sustainable. The same, therefore, is liable to be quashed and set aside. 11. For all the reasons hereinabove, both the petitions succeed and the same are accordingly allowed. Consequently, the impugned order Annexure P-2 in these petitions is quashed and set aside. The impugned order, therefore, is neither legally nor factually sustainable. The same, therefore, is liable to be quashed and set aside. 11. For all the reasons hereinabove, both the petitions succeed and the same are accordingly allowed. Consequently, the impugned order Annexure P-2 in these petitions is quashed and set aside. Both the petitions stand disposed of.