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2016 DIGILAW 239 (JHR)

Binod Kumar Yadav v. State of Jharkhand

2016-02-01

RAVI NATH VERMA

body2016
ORDER : 1. The appellant has preferred this appeal under Section 449 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) challenging the legality of the order dated 12.11.2015 passed by the learned Additional Sessions Judge- VII, Dhanbad in Sessions Trial No. 429 of 2008 (S) whereby the appellant has been sent to civil imprisonment for realization of forfeited amount of rupees one lakh or imprisonment in civil jail for a term of six months. 2. The facts of the case, which is relevant for the proper adjudication of this appeal, in short, is that after filing of a Criminal Appeal (DB) No. 1154 of 2012 in this Court by a convict Md. Naseem Ansari against the judgment of conviction dated 18.10.2012 and order and sentence dated 19.10.2012 passed by Additional Sessions Judge-VII, Dhanbad in Sessions Trial No. 429 of 2008 for the offence punishable under Section 302 of the Indian Penal Code and also under Section 27 of the Arms Act, prayer was made for suspension of his sentence and grant of bail, but the same was rejected vide order dated 07.05.2013. Subsequently, an interlocutory application bearing no. 4046 of 2015 was filed on his behalf for interim suspension of sentence enabling him to perform the marriage of his daughter, which was allowed vide order dated 19.08.2015 and the appellant was directed to be released on provisional bail from jail from 01.09.2015 on furnishing bail bonds of Rs. 1,00,000/- with two sureties with further direction to him to surrender in the court below or before the Jail Superintendent on 7th September, 2015 by 4.00 p.m. positively. The bail bond on behalf of Binod Kumar Yadav and Anil Yadav were furnished and after verification, the bail bonds were accepted and the accused was released but the said accused Naseem Ansari violating the order of this Court absconded and did not surrender either before the court concerned or before the Jail Superintendent. Thereafter, the bail bonds were cancelled and vide order dated 09.09.2015, the court below directed to issue show cause notice to the bailors of the accused Naseem Ansari forfeiting the amount of surety bond and non-bailable warrant and Process under Section 82 and 83 of the Code were issued against the accused Naseem Ansari. 3. Thereafter, the bail bonds were cancelled and vide order dated 09.09.2015, the court below directed to issue show cause notice to the bailors of the accused Naseem Ansari forfeiting the amount of surety bond and non-bailable warrant and Process under Section 82 and 83 of the Code were issued against the accused Naseem Ansari. 3. From the order sheet of the court below dated 03.10.2015, it appears that a direction was given by the Division Bench of this Court to initiate proceedings against both the sureties in accordance with law and intimate about the outcome of those proceedings to the Court. It further appears from the order sheet dated 06.10.2015 of the court below that in the show cause notice issued to the bailors, 10 days time was given to file show cause as to why the sureties amount of rupees One Lakh be not forfeited. The said notice against the bailor Binod Kumar Yadav (the appellant), as it appears from order sheet, was served upon him on 05.10.2015. 4. Learned counsel appearing for the appellant assailing the order impugned as bad in law and perverse and against the principle of natural justice seriously contended that the court below mis-appreciated and misconceived the provision of the mandates of Section 446 (2) of the Code while passing the order impugned and though the show-cause was filed by the appellant, the same was not considered. It was also contended that from the order sheet of court below dated 15.10.2015, it would appear that the show cause notice was served upon the appellant on 05.10.2015 wherein direction was given to appear and file show cause within ten days but the court below has recorded that the said ten days has elapsed on 20.09.2015, which is perverse as when the notice has been served on 05.10.2015, the ten days period would be calculated from the date of service of notice and not from the date of issuance of notice. Learned counsel further submitted that this appellant was never a bailor of the accused Naseem Ansari and the moment he came to know of the fraud played by showing his name as bailor, he immediately filed a petition before the court concerned under Section 444 of the Code with prayer to discharge him from the liability of the surety but no order was passed on the said petition by the court concerned. It was also submitted that the court below without recording his satisfaction regarding prima facie material available for forfeiture of bond passed the order impugned though it was mandatory to record the satisfaction. As such, the order impugned is vitiated in law and is fit to be set aside. 5. Learned counsel representing the State fairly submitted that from the order sheet of 15.10.2015, it appears that the court below without following the mandates of Section 446 of the Code passed the order impugned and apparently the show cause filed at the instance of the appellant has not been considered. 6. To appreciate the submissions of the counsels, a reference of the relevant portion of Section 446 of the Code is necessary, which is reproduced herein-below:- “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. 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. Explanation:- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months. (3)........... (4)........... (3)........... (4)........... (5)...........” From mere perusal of the aforesaid provision, it would appear that before passing any order of forfeiture, it was mandatory for the court below to give an opportunity to the bailor to file show cause. Though an opportunity, as it appears, had been given by the court below to the bailor i.e. the appellant but in the order sheet dated 15.10.2015, the court below has misconceived and recorded that the show cause notice though has been served on the appellant on 05.10.2015 but the period of filing the show cause has already elapsed on 20.09.2015. Obviously, ten days? time granted to file show cause would be computed from the date of service of notice but without waiting for the show cause, the court below by order dated 15.10.2015 directed the Office to issue distress warrant against the present appellant forfeiting the amount of rupees one lakh. It further appears that in terms of the provisions of Section 446 of the Code, before issuance of show cause notice to the appellant or to the person surety, the Magistrate has to record his satisfaction that there is a prima facie material for such forfeiture of bond. In other words, two ingredients are to be fulfilled, the first one is the proof that the bond has been forfeited and to record the grounds of proof and the second is a step calling upon the person surety to pay penalty or to show cause as to why necessary order should not be passed in terms of the related bonds and the reasons for that satisfaction must be recorded in writing. In the case Ghulam Mehdi Vs. State of Rajsthan, AIR 1960 SC 1185 in a similar situation, the Hon'ble Supreme Court while dealing with Section 514 of the old Code of Criminal Procedure, 1898, which is now Section 446 of the new Code, held that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause, only then can the Court proceed to recover the money. The Hon'ble Court further held that when no opportunity has been given to a surety to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance with law and should therefore be quashed. The Hon'ble Court further held that when no opportunity has been given to a surety to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance with law and should therefore be quashed. 7. In the case at hand, after service of notice, the appellant filed his show cause, but as observed above, the said show cause has not been considered by the court below simply because the court in his order dated 15.10.2015 had recorded that ten days time granted to the appellant to file show cause has already elapsed on 20.09.2015. Apparently, it was a misconceived finding of the court. The rule of natural justice requires that before any adverse order is passed, the person concerned should be given an opportunity of being heard. No such opportunity was given to the appellant. 8. For what has been stated above, this appeal is allowed. The Order impugned dated 12.11.2015 passed by the learned Additional Sessions Judge-VII, Dhanbad in Sessions Trial No. 429 of 2008 is, hereby, set aside and the matter is remanded to the court concerned to pass a fresh order within three weeks from the date of production of copy of this order after providing proper opportunity to the appellant in terms of Section 446 of the Code of Criminal Procedure.