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2024 DIGILAW 1215 (KER)

SOMAN S/O GOPALAN v. STATE OF KERALA

2024-09-24

SOPHY THOMAS

body2024
JUDGMENT : SOPHY THOMAS, J. 1. This appeal is filed by the sureties of the accused in S.C. No. 122 of 2003 on the file of Additional Sessions Judge Fast Track Court-II, Alappuzha, challenging Annexure-A order dated 12.01.2005 by which they were ordered to pay penalty of Rs.20,000/- each. 2. The accused in S.C. No. 122 of 2003 absconded, and notice was ordered to the appellants who were his sureties. In spite of service of notice, they neither appeared nor showed any reason for not forfeiting the bond amount. Finding that the appellants violated the conditions in the bail bond, the trial court ordered them to pay penalty of Rs.20,000/- each, against which they have preferred this appeal. 3. Heard learned counsel for the appellants and learned counsel for the respondent-State. 4. Learned counsel for the appellants would submit that, the accused for whom they stood as sureties was subsequently arrested, and produced before court, and after trial, he was acquitted also. When the accused was arrested, and produced before the trial court, his case number was changed and so the appellants could not follow up the proceedings so as to make their appearance before court. But, they are not disputing the fact that they were the sureties of the accused in S.C. No. 122 of 2003, and they failed to produce the accused before court in spite of notice. 5. The impugned order, Annexure-A, shows that since the accused was absconding, notice was issued to the sureties, but they did not appear and so the court straight away forfeited the bail bond and imposed the penalty on them. 6. The importance of notice was considered by the Apex Court in the decision Ghulam Mehdi v. State of Rajasthan, 1960 KHC 740 : AIR 1960 SC 1185 . The Hon’ble Apex Court held that, before a surety becomes liable to pay the amount of the bond forfeited, it is necessary to give notice, and if surety fails to show sufficient cause, only then the court should proceed to recover the money. When no opportunity is being given to show cause why he should not be made to pay, the proceedings could not be said to be in accordance with law. When no opportunity is being given to show cause why he should not be made to pay, the proceedings could not be said to be in accordance with law. The expression “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” employed under Section 446(1) Cr.P.C. would reveal the aforesaid position clear. 7. While considering necessity of notice to the sureties before imposing penalty, this Court, in Thundichi and Another v. State of Kerala, 2009 KHC 1046, held that, after forfeiting the bond and before imposition of penalty, notice has to be issued to the sureties. In that case, notice was issued to the sureties to show cause against imposition of penalty, but it was before forfeiture of the bail bond. The court held that even if notice was issued to show cause as to why the surety bond shall not be forfeited, then also before imposing the penalty, the sureties had to be given notice, after forfeiture of the bond. Paragraph 3 of that judgment reads thus: “3. It is argued by learned counsel that going through the order passed by the learned Assistant Sessions Judge, notice was issued to the petitioners only before forfeiture of the bond and after such forfeiture, no notice as contemplated under S.446 of the Code was issued. That deprived petitioners of an opportunity to show cause against imposition of penalty. Learned counsel has placed reliance on the decision of the Supreme Court in Ghulam Mehdi v. State of Rajasthan, 1960 KHC 740 : AIR 1960 SC 1185 : 1960 Cri. L.J. 1527. There, referring to the provisions of S.514 of the old Code it was held that before imposition of penalty notice has to be issued to the sureties. In this case though it is seen from the copy of notice produced by petitioners in this revision that petitioners were called upon to show cause against imposition of penalty but that was before forfeiture of the bail bond. Petitioners are correct in contending that they were not given notice after forfeiture of the bond......” 8. In this case though it is seen from the copy of notice produced by petitioners in this revision that petitioners were called upon to show cause against imposition of penalty but that was before forfeiture of the bail bond. Petitioners are correct in contending that they were not given notice after forfeiture of the bond......” 8. In Vasantha and Another v. State of Kerala, 2015 KHC 539, this Court held that Court has to exercise extreme caution while forfeiting surety bonds under Section 446 of Cr.P.C. The mandatory requirement of the principle of natural justice is that a person against whom an adverse order is passed must be given an opportunity of being heard. Therefore, before forfeiting the surety bond, the primary responsibility on behalf of the Court is to give notice to the surety to show-cause as to why the surety bond be not forfeited. Paragraph 4 of that judgment reads thus: “4. The Court has to exercise extreme caution while forfeiting surety bonds. When a bond under the Code for appearance or production of property is executed 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 before forfeiting the bond, 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. I have perused the lower Court records, nothing has been stated in the order of the lower Court with regard to the satisfaction of the Court or the ground of proof while imposing penalty. Show-cause notice was served on the 1st appellant. But the show-cause notice to the 2nd appellant was not served. The mandatory requirement of the principle of natural justice is that a person against whom an adverse order is passed must be given an opportunity of being heard. Therefore, before forfeiting the surety bond, the primary responsibility on behalf of the Court is to give notice to the surety to show-cause as to why the surety bond be not forfeited.” 9. In the decision Anziya v. State of Kerala, 2015 (4) KHC 866 , this Court held that proceedings under Section 446 Cr.P.C. consists of two stages. Therefore, before forfeiting the surety bond, the primary responsibility on behalf of the Court is to give notice to the surety to show-cause as to why the surety bond be not forfeited.” 9. In the decision Anziya v. State of Kerala, 2015 (4) KHC 866 , this Court held that proceedings under Section 446 Cr.P.C. consists of two stages. First stage is to record satisfaction that the bond has been forfeited, and after recording forfeiture, if penalty is ordered to be paid, a date is to be fixed for effecting payment of penalty, or to show cause why it should not be paid. So obviously the first stage is satisfaction of forfeiture of the bond and the second stage is imposition of penalty. 10. A combined reading of the decisions cited supra, would make it clear that, notice has to be issued to the sureties before forfeiture of the bond, and thereafter they have to be issued a notice to pay the penalty or to show cause, as to why the penalty amount shall not be paid. 11. Section 446 of Cr.P.C. is worth quoting, which prescribes the procedure to be followed, when it is proved to the satisfaction of the Court that the bond has been forfeited: 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. 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. 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) The court may, after recording its reasons for doing so, remit any portion of the penalty, mentioned and enforce payment in part only. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. (5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the court shall presume that such offence was committed by him unless the contrary is proved. 12. Section 437A Cr.P.C. also seems to be relevant in this context which reads thus: 437-A. Bail to require accused to appear before next Appellate Court: (1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months. (2) If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply. 13. Going by Section 446 of Cr.P.C. the court has to be satisfied that the bond has been forfeited. The Section clearly says that it has to be proved to the satisfaction of the Court, that the bond has been forfeited. In order to satisfy that there was forfeiture of the bond by the sureties, the first step is to issue notice to them to produce the accused or to show cause why the bond shall not be forfeited. Only on non-production of the accused as per notice, and on failure to show cause, the court will be satisfied of the forfeiture of the bond. After issuing notice, if the accused fails to appear or the sureties fail to produce the accused, automatically the bond shall stand forfeited. When it is said that, it was proved to the satisfaction of the court that the bond has been forfeited, it only means that, in spite of notice, the accused did not appear and the sureties failed to produce him before court as per the conditions of the bond executed by them without showing any cause. 14. The question as to whether proof of forfeiture of bond, is an essential pre-requisite for commencing the proceedings under Section 446 Cr.P.C. and whether a mere finding that the accused was absent, is sufficient to arrive at a satisfaction that the bond has been forfeited, etc were considered by a Division Bench of this Court in Thundichi and Another v. State of Kerala, 2009 (4) KHC 76 . It was a reference to the Division Bench, taking note of the divergent views in the decisions of this Court in Usman v. State of Kerala, 2005 KHC 1240 : 2005 (4) KLT 348 : 2005 (3) KLJ 420 : ILR 2006 (1) Ker. 136 and Geetha v. State of Kerala, 2006 KHC 1049: 2006 (3) KLT 960 : ILR 2006 (3) Ker. 830 : 2006 (3) KLJ 364 . The Division Bench considered the matter and vide judgment dated 10/07/2009 held that, it is not required that the Court concerned should record satisfaction before bail bond is forfeited and that forfeiture of bail bond is automatic on non-compliance of the conditions referred to therein. 15. 830 : 2006 (3) KLJ 364 . The Division Bench considered the matter and vide judgment dated 10/07/2009 held that, it is not required that the Court concerned should record satisfaction before bail bond is forfeited and that forfeiture of bail bond is automatic on non-compliance of the conditions referred to therein. 15. It is no longer res integra that the court concerned need not record satisfaction before the bail bond is forfeited and that forfeiture is automatic, on non-compliance of the conditions, referred to therein. Once the bond stands forfeited, the procedure under Section 446 has to be followed. 16. In practice, normally an M.C. will be registered against the accused and sureties, only after the court being satisfied that the bond has been forfeited. As already said, satisfaction can be arrived only by sending notice to the accused and sureties, and on finding that they have violated the conditions of the bond executed by them. That is why in Vasantha’s case cited supra, this Court held that before forfeiting the surety bond, there is primary responsibility for the court to give notice to the surety to show cause as to why the surety bond shall not be forfeited. Issuance of notice after forfeiting the bond, and asking the persons bound by such bond to pay penalty thereof or to show cause why it should not be paid is embedded in Section 446 itself, and that statutory mandate cannot be ignored or violated, as it was held in Thundichi’s case and in Anziya’s case cited supra. 17. In the case on hand, the impugned order shows that notice was issued to the appellants/sureties to show cause why the bond shall not be forfeited. But, thereafter the court straight away proceeded to impose the penalty, without issuing any notice to them, asking them to show cause why penalty shall not be imposed on them. Annexure-A order was passed by the trial court in violation of the statutory mandate under Section 446 of the Cr.P.C. and hence that order is liable to be set aside. 18. Learned Public Prosecutor submitted that the defect of not sending notice before imposition of penalty can still be cured for which the matter can be remanded to the trial court. 19. 18. Learned Public Prosecutor submitted that the defect of not sending notice before imposition of penalty can still be cured for which the matter can be remanded to the trial court. 19. Learned counsel for the appellants would contend that the accused who was absconding, subsequently appeared before court and he was released on bail and he was acquitted after a full-fledged trial. The incident was of the year 2003. The impugned order by which the sureties were ordered to pay penalty is dated 12.01.2005. Considering the long delay of about 19 years and also considering the fact that the accused was acquitted in S.C. No. 122 of 2003, this Court is not inclined to reopen or remand the matter for issuing show cause notice to the appellants/sureties. Since Annexure-A order was passed without issuing notice to pay the penalty or to show cause as envisaged under Section 446 of Cr.P.C. this Court is inclined to set aside that order. 20. In the result the appeal is allowed, setting aside Annexure A order dated 12.01.2005.