HARGOVIND Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS is an appeal under Section 449 (2) of the Code of Criminal Procedure, 1973. One Bhoore was an accused in a Sessions Trial No. 87 of 1974-A, under Section 396 I. P. C. Both the appellants stood sureties for Bhoore in the sum of Rs. 5.000/- each. The trial was fixed for 4-7-1974. On that date it was adjourned to 14-8-1974 on the application of the prosecution. Bhoore was present on that date. On 14-8-1974 Bhoore was absent. Immediately the Illrd Additional Sessions Judge forfeited the bail bonds. A notice was sent to the appellants as to why the penalty amount be not realised from them. The appellants did not file any objection. Bhoore appeared in Court probably on the next day of 14-8-1974. He was tried in the case and acquitted. On 17-9-1974 the IIIrd Additional Sessions Judge passed order appealed against directing that a sum of Rs. 1,000/- be realised from each of the two appellants. Learned Counsel for the parties have been heard and record seen. The order of the IIIrd Additional Sessions Judge cannot be upheld for the reasons given below: (1) Bhoore was present on 4-7-1974 on which date the hearing was adjourned to 14-8-1974 on the application of the prosecution. On 14-8-1974 Bhoore was absent. The Additional Sessions Judge did not call upon the sureties to produce him. The additional Sessions Judge, on the other hand, immediately passed order of the forfeiture of the bail bonds. There after the Additional Sessions Judge simply followed the procedure given in Section 446 Criminal Procedure Code. He issued notice to the sureties as to why the penalty amount be not realised from them. Section 446 lays down that where a bond is for appearance or for production of property before a Court and it is proved to the satisfaction of that Court that the bond has been forfeited, the Court shall call upon the person bound to pay penalty amount or to show cause why it should not be paid. THIS section clearly envisages that before passing the order calling upon the sureties to pay the penalty amount or to show cause why it should not be realised, the Court has to find that the bond has been forfeited. In other words the Court has to see first whether the bonds have been legally and properly forfeited. The Code does not lay down and procedure to be followed in the matter of forfeiture of bonds furnished under its provisions. Hence, the Court should follow the procedure which is in consonance with the principle of natural justice and fair play because the order of forfeiture of bonds entails the realisation of penalty amount mentioned in the bond. The basic rule underlying the principle of natural justice is that no order adverse to a person be passed without giving him an opponunity of being heard. It means that before an adverse order is passed, the persons concerned should be called upon to show cause why the proposed order be not passed against him. The Court should keep in mind that there can be various reasons for an accused, who has entered into a personal bond to appear on the date/dates fixed for the hearing of the case, to be absent on the date of hearing, for instance, illness, death of a close relation, any other work of an urgent nature, accident in the way, arrest by the police in connection with another offence etc. Likewise there can be various reasons for the sureties, who have entered into bond undertaking to produce the accused on the date of hearing, not to produce him on the date of hearing. There can be cases in which the accused assures the sureties that he would appear in Court on the date fixed and later on he changes his mind either at the place of his residence or on the way to Court. The reasons indicated above are good reasons for the absence. Mere absence does not lead to the inference that the absence was deliberate and willful and with a view to avoid presence in the Court. Neither the Code provides, nor the Court expects that on every date of hearing the sureties should accompany the accused. In these circumstances, to avoid harassment to the sureties as well as to avoid multiplicity of proceedings, it is expedient that before forfeiting the surety bonds, the sureties are called upon by means of a notice to produce the accused or to show cause why their bonds be not forfeited, giving a reasonable time. On account of the absence of the accused on the date of hearing, the Court may be justified in cancelling the order of bail and issuing warrant for the arrest of the accused. In case the accused is arrested and brought before the Court and he informs a just or reasonable cause for his absence, the Court can recall its order cancelling bail and allowing the accused to remain out of. judicial custody on the personal bonds and surety bonds already furnished. In doing so, there is to question of breach of any provisions of the Code. The Code does not make it incumbent upon the Court to immediately pass an order forfeiting the bonds on the date the accused is absent, even though the Court may cancel the order of bail and issue warrant for the arrest of the accused. The undertaking of the sureties to secure attendance of the accused will be independent of the undertaking given by the accused to appear before the Court. In the case Ram Lal v. State of U. P. A.I.R. 1979 S.C. 1498 it was held that forfeiture of personal bond of accused is not a condition precedent to the forfeiture of bonds of the sureties. It means that it is not necessary that the bonds of the sureties should be forfeited simultaneously with the forfeiture of personal bond of the accused or vice versa Therefore, forfeiture of the bonds of the sureties, is not necessary to be made at the time of cancelling the order of bail on account of the absence of the accused on a particular date of hearing. The bonds of the sureties can be forfeited subsequently on a later date and in the meantime giving an opportunity to the sureties to produce the accused or to show cause against the proposed forfeiture of their boards. A situation almost like the one of the present case arose in the case of Sarju v. Jai Raj,(2) in which the accused had given bards in compliance with an order passed under Section 107 of the Cede. The Court held that before forfeiting the bonds, notice should have been given to the accused to show cause why their bonds be not forfeited. The result of the foregoing discussion is that before passing an order of forfeiture of a surety bond, notice should be given to the surety to produce the accused or to show cause why his bond be not forfeited. THIS procedure will be in accordance with the rule of natural justice. In the present case, the Additional Sessions Judge did not give notice to the appellants to produce the accused or to show cause before passing the order forfeiting their bonds. THIS has vitiated the order dated 14-8-1974. Giving of notice under Section 446 to the sureties calling upon them to pay the penalty amount or to show cause why it should not be paid cannot take the place of the notice to be given before passing the order forfeiting the surety bonds. Different considerations prevail while judging the explanation given in compliance with the notice issued under Section 446. There is one other aspect of the matter. After the cancellation of bail and forfeiture of personal bond of the accused and bonds of the sureties, if the Court finds substance in the explanation of the accused or the sureties, it is obvious that the Court would not pass an order for the realisation of the penalty amounts. In such a situation, the accused will have to be permitted to furnish fresh personal bond and sureties. THIS duplication will be obviated if at the initial stage, notice is given to the sureties to produce the accused or to show cause why their bonds be not forfeited. From this aspect also it is desirable and expedient that before forfeiting the surety bonds, notice is given to the sureties. (2) Bhoore accused appeared in the case on the next day of the order of forfeiture. Thus for his absence on once day only, the order calling upon the appellants to pay Rs. l.000/- each was rot justified, specially in view of the fact that Bhoore was acquired in the case. Intention of taking surety bonds is to secure the presence of the accused so that the trial does not get un necessarily prolonged and not to make money thereof. Appeal is, therefore, allowed and the order dated 17-9-1974 passed by the III Additional Sessions Judge. Eiawah, against the appellants is set aside. The penalty amount of Rs. 1,000/-, if paid by or realised from any of the appellants, will be refunded to him.