MUDHU ALIAS BELLA KUDTARKAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) FACTS giving rise to this petition may be briefly narrated as follows: The petitioner stood surety to the accused Dinesh Chand in C. C. No. 219 of 1978, who was facing trial before the Judicial Magistrate First Class, Honnavar. The amount of the bond was Rs. 5,000-00. The accused Dinesh Chand remained absent before the trial Court and on that event happening the Magistrate suo moto registered a miscellaneous case against the petitioner and then issued notice to the petitioner regarding forfeiture of bond and levy of penalty. Notice was served on the petitioner and the petitioner appeared before the Magistrate. The Magistrate directed that the petitioner should pay a penalty of Rs. 5,000-00. The petitioner appealed to the Sessions Judge, Uttara Kannada, Karwar, in Criminal Appeal No. 47 of 1980. In appeal the Sessions Judge reduced the penalty to Rs. 4,000-00. It is these orders that are challenged in this revision petition. Sri K. S. Kempanna, learned Advocate appearing on behalf of the petitioner, urged in the first instance that a reading of Section 446 of the Code of Criminal Procedure plainly shows that the Magistrate ought to have forfeited the bond in the first instance and then registered a proceeding or issued a notice to the petitioner, but in this case the Magistrate has, without forfeiting the bond, issued a notice to the petitioner by registering a case separately and, therefore, the proceeding is not in accordance with Section 446 of the Code. Section 446 (1) of the Code lays down that if 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, that the bond has been forfeited .... This wording clearly shows that if a term of a bond is violated or breach of a term of a bond is committed, the bond automatically stands forfeited. The Magistrate has to satisfy himself that it has been forefeited. No formal order of forfeiting the bond is called for. Therefore the first argument of Sri Kempanna that the Magistrate has issued a notice without forfeiting the bond, has no legs to stand. Sri Kempanna nextly argued that the Magistrate ought to have given an opportunity to the petitioner to produce the accused after the petitioner appeared before the Court in response to the notice served on him and that he has failed to do so and, therefore levying of penalty, as has been made by both the Courts below, is not in accordance with law. Here again, I see no force in the argument because it is not provided in Section 446 of the Code that an opportunity should be afforded to the surety to produce the accused because forfeiture of the bond, as already held above, takes place as soon as the accused absents himself on a particular date of hearing. If the surety is able to produce the accused or produces the accused, the fact or circumstance may be taken into consideration by the Magistrate who has taken action against the surety in regard to levying of penalty on the surety. The Magistrate can even waive levying of penalty. Though the bond was for an amount of Rs. 5,000-00 it is clear that the amount is on the higher side, taking into consideration what is provided in Section 440 of the Code. The reduction of the penalty from Rs. 5,000-00 to Rs. 4,000,00 by the Sessions Judge is not reasonable and the learned State Public Prosecutor fairly stated that the amount of Rs. 4,000-00 is also high. Taking into consideration all the facts and circumstances of the case, I consider it just and proper that a penalty of Rs. 1,000-00 and not Rs. 4,000-00 is to be levied from the petitioner. I order accordingly. It is with this modification in the levy of penalty that this revision petition is dismissed.