THUNDICHI Vs. STATE OF KERALA

JUDGEMENT

(1.) This revision is in challenge of judgment of learned Sessions Judge, Kasargod in Crl. Appeal No. 320 of 2006 modifying the penalty payable by petitioners and imposed by the learned Assistant Sessions Judge, Kasargod in Crl. M.C. No.2 of 2003.

(2.) Facts which are not in dispute are that petitioners bailed out the accused in S.C. No. 888 of 2000 of the court of learned Assistant Sessions Judge, Kasargod for offence punishable under Section 55(a) of the Abkari Act. Petitioners executed bond for Rs.10,000/- each. On the relevant day accused did not appear in the trial court. Thereon notice was issued to the petitioners to show cause, obviously as provided under Section 446(1) of the Code of Criminal Procedure (for short, "the Code"). Petitioners did not respond. Learned Assistant Sessions Judge forfeited the bail bond and directed petitioners to pay penalty of Rs.10,000/-. That order was challenged in appeal at the instance of petitioners. Learned Sessions Judge modified the penalty payable as Rs.3,000/-. Not satisfied, petitioners took up the matter in revision in this Court. When the matter came up for hearing, taking note of the divergent views in the decisions of this Court in Usman v. State of Kerala, 2005 4 KerLT 348 and Geetha v. State of Kerala, 2006 3 KerLT 960, the matter was referred to a Division Bench for authoritative pronouncement of the issue involved. Division Bench considered the matter and vide judgment dated 10.7.2009 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. Answering the issue accordingly the matter was remitted to this Court for disposal of the revision. It is held by the Division Bench that it is not necessary that the learned Assistant Sessions Judge should have entered any satisfaction before bail bond was forfeited. That issue therefore ends there.

(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 Sec.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 AIR(SC) 1185. There, referring to the provisions of Sec.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. It is submitted by learned counsel that subsequent to the impugned orders accused was tried in the case and he was acquitted. That, however is a matter to be taken into account by the learned Assistant Sessions Judge after issuing notice to the petitioners as contemplated in Sec.446(1) of the Code and while deciding whether penalty should be imposed on petitioners since arrest/production/appearance of the accused after forfeiture of the bond cannot by itself exonerate the sureties from liability based on the forfeiture of the bond. In the light of the above facts and circumstances, the order passed by the learned Assistant Sessions Judge and consequently the judgment of learned Sessions Judge cannot stand and the same are liable to be set aside.