ANZIYA Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is filed under S.449 of the Code of Criminal Procedure against an order passed by the Court of Additional Sessions Judge - I, Thiruvananthapuram in Crl MC No. 79 of 2014 in SC No. 957 of 2009. The appellant stood as surety to the accused in the said sessions case. Owing to the absence of the accused proceedings were initiated under S.446 CrPC against the appellant and the other surety. Though notice was issued to the appellant he did not appear before the Court below. He filed an affidavit. After considering the affidavit the bail bond was forfeited. As against the other surety, after forfeiture of the bail bond, he was imposed with a penalty of Rs.40,000/- and in default of payment of the penalty he was directed to undergo simple imprisonment in civil prison for a period of one month. Distress warrant was also issued against the appellant herein who is surety No. 1 despite the fact that no penalty was imposed on him. It is in the said circumstances that the captioned appeal has been preferred.

(2.) I have heard the learned counsel for the appellant and also the learned Public Prosecutor.

(3.) There can be no doubt with respect to the position that when a person stands as a surety to an accused in a criminal case he is bound to procure the presence of the accused for whom he stood as surety as and when the presence of the accused has been required by the Court if the accused by himself is not appearing before the Court. In a case of serious nature when the accused fails to appear before the Court for the trial and when proceedings are initiated, in accordance with law, and notice has been given to the concerned surety requiring the surety to procure the presence of the accused concerned or to assign the reason for not forfeiting the bail bond on imposing penalty, the surety is bound to procure the presence of the accused on the appointed day or to appear and assign the reason for not forfeiting the bond. In this case, despite the receipt of notice the appellant has not chosen to appear before the Trial Court and he has chosen only to file an affidavit. The bail bond was forfeited going by the impugned order. But, at the same time, a perusal of the order impugned would reveal that after forfeiture no penalty was imposed on the appellant who is the first surety. After forfeiture as against surety No. 2 penalty of Rs.40,000/- was imposed and in default of payment of the penalty thus imposed he was ordered to undergo simple imprisonment for one month in civil prison. At the same time, without imposition of penalty distress warrant was also issued against the appellant / surety No. 1. The word 'distress' denotes a legal seizure of personal chattel from the possession of a wrong - doer as a method of enforcing payment. A perusal of the provisions under S.446 CrPC is only appropriate for a proper understanding of the position of law and for a proper disposal of this appeal. A careful scanning of the said provisions would reveal that after an order of forfeiture of the bail bond if penalty was imposed against a surety a date has to be fixed for its payment or to show cause why it should not be paid. S.446, CrPC would reveal that it virtually consists of two stages. In the first stage the Court is required to record the satisfaction for ordering forfeiture and after recording such 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. This position is evident from a bare perusal of the provisions under S.446, CrPC and its explanation and they read thus: