IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1341/2019 BETWEEN:
Shivakumar. S S/o Late Siddegowda, Aged about 39 years, R/at No.21, Thirumalappanagar, Attur Layout, Yalhanka, Bengaluru-560 064. ... Appellant (By Sri C. N. Raju, Advocate) AND:
State by H.S.R Layout Police Station, Bengaluru.
Rept. By SPP, High Court of Karnataka, Bengaluru-560 001. ... Respondent (By Sri M. Divakar Maddur, HCGP) This Criminal Appeal is filed under Section 449 of Cr.P.C praying that this Hon’ble Court may be pleased to set aside the order passed by the LVI CCH-57 Additional City Civil and Sessions Judge at Bengaluru in Crl.Misc.No.8853/2016 dated 01.12.2016 and allow the appeal filed by the appellant.
This Criminal Appeal is coming on for Orders, this day, the court delivered the following:
JUDGMENT The present appeal has been preferred by the appellant/surety being aggrieved by the order passed by the LVI Additional City Civil and Sessions Judge at Bengaluru in Crl.Misc.No.8853/2016 dated 01.12.2016.
2. I have heard the learned counsel for the appellant/accused No.1 and learned High Court Government Pleader for respondent-State.
3. It is the submission of learned counsel for the appellant that the appellant stood as a surety to accused No.1 in S.C.No.1508/2012 on 07.12.2013. Subsequently, the accused remained absent and Non Bailable Warrant was issued to cancel the bail. Without serving any notice to the appellant/surety, the impugned order has been passed. The court below without following the procedure established under Section 446 of Cr.P.C has come to a wrong conclusion.
He further submitted that the impugned order is a harsh order. He further submits that he reliably learnt that accused No.1 has expired. If he has expired then the case against accused No.1 is going to be abated, and the surety must have been discharged. On these grounds, he prayed to allow the appeal and set aside the impugned order.
4. Learned High Court Government Pleader vehemently argued and submitted that accused No.1 has remained absent and thereafter, NBW was issued. He further submitted that the court below has issued surety notice since they were willfully avoiding the surety notice and as such, forfeiture has been passed. There is no illegality or irregularity in passing the impugned order, the same deserves to be confirmed. On these grounds, he prayed to dismiss the appeal.
5. I have carefully and cautiously gone through the submission of the learned counsel for the parties and perused the records.
6. On close reading of the contents of the grounds urged in the petition and arguments discloses that it is not in dispute that the appellant stood as a surety to the accused in S.C.No.1508/2012 and it is also not in dispute that the present appellant stood as a surety to accused No.1 on 07.12.2013. The only contention which has been raised by the learned counsel for the appellant is that before passing the impugned order, the procedure laid down under Section 446 of Cr.P.C has not been followed. For the purpose of brevity I quote Section 446 of Cr.P.C. which reads as under:
“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.
(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:
1[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.
446A. Cancellation of bond and bail bond.— Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition,— (a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and (b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:
Provided that subject to any other provisions of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient”.
7. On close reading of the said Section, the court has to consider that if the accused and surety willfully does not appear before the court, as per the bond executed by them Court can cancel the bail and forfeit the bond to the Government. While doing so it has to follow the principles of natural justice and also principles of audi alteram partem i.e., no man should be condemned without hearing. In that light, the court must give an opportunity to the surety by serving the notice to produce the accused and thereafter, he has to pass an appropriate order. No doubt, when the surety bond has been executed, there will be binding and the term of the bond that he has undertaken to furnish the accused on all hearing dates of the trial or till the disposal of the case. But before passing an order of forfeiture as per his undertakings, the principles of natural justice require that he should be given an opportunity. Though there is no specific words used in the Section 446 of Cr.P.C that before the surety bond is forfeited, an opportunity of notice has to be given, even otherwise, once the forfeiture order is passed then the notice has to be served. As could be seen from the records that the forfeiture order has been passed thereafter Crl.MiscNo.8853/2016 has been registered in this behalf. In the light of the discussion held by me above and even it is submitted by the learned counsel for the appellant that reliably he has learnt accused No.1 has already expired. In that light, the impugned order is liable to be set aside. Accordingly, appeal is allowed and the order dated 28.06.2016 is set aside and the matter is remanded back to the court below to follow the procedure laid down under Section 446 of Cr.P.C and pass an appropriate order in accordance with law by giving opportunity to appellant. However, the appellant is also directed to go and surrender before the Court and make all efforts either to produce the accused or he must bring the record to show that accused No.1 has already expired. The court below is directed to pass a suitable order in accordance with law.
Sd/- JUDGE HA/-