Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1492 (HP)

Ram Lal Dogra v. State of H. P.

2015-10-13

RAJIV SHARMA

body2015
JUDGMENT : Justice Rajiv Sharma, J. This petition is directed against the order dated 1.9.2015, rendered by the learned Special Judge -III, Solan in case No.67 ASJ-II/4 OF 2015. 2. Key facts, necessary for the adjudication of this petition are that the petitioner stood surety for the accused, namely, Hukam Chand before the trial Court. The accused jumped over the bail and did not put his presence before the trial Court. The proceedings were initiated against the petitioner under the relevant provisions of the Code of Criminal Procedure. The petitioner has not placed on record the entire jimni orders on record but it is evident from order dated 27.8.2014 placed on record that proceedings under Section 446 Cr.P.C. were initiated against the petitioner and he was not present on that date. The case was repeatedly called but none appeared on his behalf. The learned trial Court came to the conclusion that since the petitioner has not put in appearance, he has nothing to say in the matter, therefore, appropriate warrant to realize the forfeited amount was issued against him and report was called for 13.10.14. The matter was taken up on 1.12.2014. Neither the penalty amount was paid nor necessary warrant to realize the forfeited amount was issued. The matter was to come up on 17.1.2015. The matter was adjourned on 17.1.2015 for 13.2.2015. In these circumstances, the trial Court was constrained to issue warrant of attachment to the District Collector and the report was called for 16.4.2015. The matter again came up on 1.6.2015. The petitioner who was present on the previous date of hearing was not present. The case was repeatedly called, however, there was no appearance and appropriate warrant to realize forfeited amount of Rs. one lac was issued and the report was called for 14.7.2015. The petitioner has shown his inability to pay the surety amount. The matter was ordered to be listed on 1.9.2015. 3. The learned trial Court issued warrant under Section 421 Cr.P.C. to the District Collector to realize the amount of the penalty imposed against the petitioner in the sum of Rs. one lac from his moveable and immoveable property and arrears of land revenue. Thereafter, the District Collector was directed to deposit the amount before the Court on the next date of hearing i.e. 5.10.2015. The warrant issued under Section 421 Cr.P.C was not received back after compliance. one lac from his moveable and immoveable property and arrears of land revenue. Thereafter, the District Collector was directed to deposit the amount before the Court on the next date of hearing i.e. 5.10.2015. The warrant issued under Section 421 Cr.P.C was not received back after compliance. Notice was issued to the District Collector why he failed to execute the warrant in accordance with law and why action shall not be initiated against him as per law. The matter was ordered to be taken up on 17.10.2015. Hence, this petition. 4. Mr. Virender Singh, Advocate, has vehemently argued that proceedings initiated against the petitioner under Section 421 Cr.P.C are concerned with the levy of fine and is only meant for the offender who has been sentenced to pay fine. He then contended that the petitioner could not appear due to old age. On the other hand, Mr. Parmod Thakur, Addl. AG, has supported the order of the learned trial Court. 5. I have heard the learned counsel for the parties and has also gone through the records and orders of the case, carefully. 6. It is evident from the facts, enumerated hereinabove, that the petitioner has failed to produce the accused. He was given repeated opportunities to file reply to the showcause notice as to why the bail bonds be not forfeited. The warrant of attachment has been issued to the District Collector to realize the forfeited amount. The District Collector has failed to comply with the orders of the Court, including order dated 1.9.2015. 7. Their lordships of the Hon'ble Supreme Court in the case of Ram Lal vrs. State of U.P., reported in AIR 1979 SC 1498 , have held that forfeiture of personal bond of accused is not a condition precedent to forfeiture of bonds of sureties. It has been held as follows: ?3. 7. Their lordships of the Hon'ble Supreme Court in the case of Ram Lal vrs. State of U.P., reported in AIR 1979 SC 1498 , have held that forfeiture of personal bond of accused is not a condition precedent to forfeiture of bonds of sureties. It has been held as follows: ?3. Section 499 (1) of the Code of Criminal Procedure Code 1898 was in the following terms: "Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such persons shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be". Now, this provision contemplated the execution of a bond by the accused, and by the sureties. The provision did not imply that a single bond was to be executed by the accused and the sureties, as it were, to be signed by the accused and counter signed by the sureties. Form No. 42 of Schedule V, Code of Criminal Procedure, 1898, was as follows: "XLII-bond and bail-bond on a preliminary Inquiry before a Magistrate. The provision did not imply that a single bond was to be executed by the accused and the sureties, as it were, to be signed by the accused and counter signed by the sureties. Form No. 42 of Schedule V, Code of Criminal Procedure, 1898, was as follows: "XLII-bond and bail-bond on a preliminary Inquiry before a Magistrate. (See Sections 496 and 499) I, (name), of (place), being brought before the Magistrate of (as the case may be charged with the offence of, and required to give security for my attendance, in his Court and at the Court of Session, if required, do bind myself to attend at the Court of the said Magistrate on every day of the preliminary inquiry into the said charge, and, should the case be sent for trial by the Court of Session, to be, and appear, before the said Court when called upon to answer the charge against me; and, in case of my making default, herein, I bind myself to forfeit to Government the sum of rupees Dated this day of 19 (Signature) I hereby declare myself (or we jointly and severally declare ourselves and each of us) surety (or sureties) for the said (name) that he shall attend at the Court of on every day of the preliminary inquiry into the offence charged against him, and, should the case be sent for trial by the Court of Session, that he shall be, and appear, before the said Court to answer the charge against him, and, in case of his making default therein, I bind myself (or we bind ourselves) to forfeit to Government the sum of rupees Dated this day of 19 (Signature)" The undertaking to be given by the accused as may be seen from form No. 42 of Schedule V was to attend the Court on every day of hearing and to appear before the Court whenever called upon. The undertaking to be given by the surety was to secure the attendance of the accused on every day of hearing and his appearance before the Court whenever called upon. The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused. The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused. The undertaking of the surety to secure the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon, even if both the undertakings happened to be executed in the same document for the sake of convenience. Each undertaking being distinct could be separately enforced. It is true that before a person is released on bail he must execute a personal bond and, where necessary, sureties must also execute bonds. There can be no question of an accused being released on bail without his executing a personal bond. But it does not follow therefrom that if a person is released by mistake without his executing a personal bond the sureties are absolved from securing his attendance and appearance before the Court. The responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused. The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. The Calcutta High Court in Sailash Chandra Chakraborty v. The State (supra) and single Judge of the Allahabad High Court in Brahma Nand Misra v. Emperor, (supra) proceeded on the assumption that the bond executed by the accused and the sureties was single and indivisible and if the accused did not join in the execution of the bond, the bonds executed by the sureties alone were invalid. We do not find any warrant for this assumption in Section 499 of the Criminal Procedure Code of 1898. We are afraid that there has been some confusion of thought by the importation of the ideas of 'debt' and 'surety' from the civil law. As pointed out in Abdul Aziz & Anr. We do not find any warrant for this assumption in Section 499 of the Criminal Procedure Code of 1898. We are afraid that there has been some confusion of thought by the importation of the ideas of 'debt' and 'surety' from the civil law. As pointed out in Abdul Aziz & Anr. v. Emperor (supra) under Section 499 Criminal Procedure Code, the surety did not guarantee the payment of any sum of money by the person accused who was released on bail but guaranteed the attendance of that person and so the fact that the person released on bail himself did not sign the bond for his attendance did not make the bond executed by the surety an invalid one. In Mewa Ram & Anr. v. State (supra) the difference between a surety under the Code of Criminal Procedure and a surety under the Civil Law was pointed out and the view taken in Abdul Aziz & Anr. v. Emperor (supra) was reiterated. We agree with the view expressed in Abdul Aziz & Anr. v. Emperor, and Mewa Ram & Anr. v. State (supra). 8. In the case of Roshan Lal vrs. Krishan Lal and another, reported in 1991 Cri. L.J. 428, the learned Single Judge of the Punjab and Haryana High Court has held that the Chief Judicial magistrate is not competent to attach or sell the immovable property under Section 421 Cr.P.C. and for that purpose, he could issue a warrant to the Collector of a District. It has been held as follows: ?4. After hearing the learned counsel for the parties, I find force in the contentions raised on behalf of the petitioner. The Chief Judicial Magistrate was not competent for attachment or sale of any immovable property under Section 421 of the Code of Criminal Procedure. For that purpose he could issue a warrant to the Collector of the District as provided therein.? 9. In the case of Kopparakandathil Narayanan and others vrs. The Distt. Collector, Kannur and others, reported in 1993 Cri. L.J. 3718, the learned Single Judge of the Kerala High Court has held that Section 446 of the Code of Criminal procedure, 1973 lays down the procedure for forfeiture of bail bonds and for imposition of penalty. It further provides that the amount can be recovered as if it were a fine imposed by the Court. L.J. 3718, the learned Single Judge of the Kerala High Court has held that Section 446 of the Code of Criminal procedure, 1973 lays down the procedure for forfeiture of bail bonds and for imposition of penalty. It further provides that the amount can be recovered as if it were a fine imposed by the Court. Section 421 lays down the modes of recovery of fine. It has been held as follows: ?2. Section 446 of the Code of Criminal procedure, 1973 lays down the procedure for forfeiture of bail bonds and for imposition of penalty. It further provides that the amount can be recovered as if it were a fine imposed by the Court. Section 421 lays down the modes of recovery of fine. To recover the amount, the Court may issue a warrant to the District Collector authorizing him to realize the amount as an arrear of land revenue from the movable or immovable property or both of the defaulter. The Court has invoked this provision for recovery of the penalty of Rs. 1500/-.? 10. Accordingly, there is no merit in this petition and the same is dismissed.