SHANKARAPPA RAMAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) IN this revision petition, the petitioner, who is said to have stood surety for the appearance of one Mallawwa- accused of having committed the offences punishable under S. 323 and 324 of the I.P.C., before the Court, and had executed a bond to that effect before the Sub-INspector of Gokak, has challenged the order dated 9-9-1980 passed by the Principal Sessions Judge, Belgaum, in Crl. A No. 41 of 1980, confirming the order dated 17-7-1980 passed by the Judicial Magistrate First Class, Gokak, in CC. No. 429 of 1979, so far as levy of penalty from the petitioner-surety is concerned but modifying the amount of penalty. Smt S Pramila learned Advocate appearing on behalf of the petitioner, firstly contended that a bond executed or said to have been executed before the police cannot be forfeited in a Court under S. 446 of the Crl.P.C. She secondly contended that the bond in question is not in order in that the date on which the said Mallawwa was to appear before the Court of the Judicial Magistrate First Class Gokak, is not mentioned in it and that Mallawwa the accused was not traceable even by the police after issue of summons and non-bailable warrants and therefore, the surety could not be held responsible for the production of Mallawwa on a date which was not fixed and as such the bond in question cannot be considered to be a bond under the Code of Criminal Procedure and, hence, levy of penalty cannot be ordered under S. 446 of the Code. I do not consider it necessarv to go into the first contention raised by Smt- S Pramila, as a look at the bond in question and considerat on of the facts and circumstances of the case, show that the bond purports to have been executed before the Sub-INspector of Police, Ghataprabha by Mallawwa as well as the petitioner. It does not show on what date the accused Mallawwa was to appear before the Judicial Magistrate First Class, Gokak. Therefore, it follows that the surety viz, the petitioner cannot be held responsible for production of the accused or for guaranteeing the appearance of the accused in the Court of the Judicial Magisstrate First Class, Gokak, on any particular date Hence the terms of the bond are not in accordance with the provisions of S. 170 (2) or S 446 of the Code. Therefore, the contention of Smt. S Pramila that this bond cannot be regarded as a bond executed under this Code as provided in S. 446 (1) of the Code, has to be upheld. Moreover, S. 446 of the Code enjoins on a Magistrate, who takes action under it, to satisfy himself that a bond executed under the Code or executed before a Court has been forfeited. Such satisfaction has necessarily got to be on scrutiny of the bond and the papers concerned. IN this case, the Magistrate ought to have read the bond and found out whether any particular date, which is provided in the form, for appearance was also mentioned. IN other words, whether the surety had undertaken to see that the accused would appear before the Court of the Judicial Magistrate First Class, Gokak, on a particular date, or the accused had undertaken that she would appear before the Court on a particular date, ought to have been found out by the Magistrafe He further ought to have satisfied himself that the bond had been executed by the surety before the Sub-INspector of Police Ghataprabha. For that purpose, it might have been necessary for him to summon the Sub-INspector of Police and make enquiries in regard to this aspect of the matter. Therefore, the other lacuna appearing in this case is that the Magistrate, who has pissed the order confirmed by the Sessions Judge, has not complied with the provisions of S. 446 of the Code so far as they relate to satisfying himself that the bond had been executed and had been forfeited Hence the orders passed by the two Courts below cannot be sustained. IN the result, this revision petition is allowed and the orders dated 9-9-1980 passed by the Principal Sessions Judge, Belgaum, in Crl A No 41 of 1980 and 17-7-1980 passed by the Judicial Magistrate First Class, Gokak, in C.C. No. 429 of 1979 are set aside.