SURYANARAYAN MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner is in revision against an order of the Magistrate confirmed in appeal refusing to remit the penalty levied on him on account of forfeiture of the surety bond executed by him. The Petitioner had stood surety by executing a bond on 19.1.81 for a sum of Rs. 2,000/ - undertaking inter alia that the accused in the case would attend the court every day on which any investigation into the charge is made or any trial on such charge is held. The G.R. Case was posted to 25.2.82 for consideration of charge on which date a petition for representation of the accused under Section 317 Code of Criminal Procedure was rejected and N.B.W. was issued against him. Thereafter on subsequent dates also the accused did not appear. The bond executed by the Petitioner was forfeited on 30.6.82 and Misc. Case No. 165/82 was started against him in which he received the notice to show cause as to why the amount under the bond would not be recovered from him. Final order was passed on 24.11.83 far realisation of the amount of Rs. 2000/ - from him. Thereafter the Petitioner filed a petition under Section 446(3) Code of Criminal Procedure on 22.12.83 for reduction of the penalty but the same was rejected on 3.1.84 as not entertainable since orders had already been passed for realisation of the amount. The appeal preferred also proved unsuccessful. Assailing the order, it is urged that the order for forfeiture of the bond is not sustainable since no notice was issued to the Petitioner before such action was taken and further since at any rate the accused in the case had been produced on 21.2.83 and the case had also ultimately ended in acquittal, the amount should not be realised from him as directed.

(2.) ADMITTEDLY , as revealed from the records, before the order forfeiting the bond was passed on 30.6.82, no notice had been issued to the Petitioner. The provision relating to forfeiture of bond is contained in Sections 446 and 446 -A. The first Section stipulates that when a bond has been forfeited the Court shall record the grounds of proof of the forfeiture and may call upon the person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. The second Section stipulates that where the bond is forfeited for breach of a condition, it shall stand cancelled. It is thus contended by the learned Addl. Standing Counsel that notice is contemplated only at the stage after forfeiture is ordered and before the person bound by the bond is called upon to pay the penalty under the bond, and no notice is necessary to be issued at the stage of forfeiture. The submission does not appear to be sound since it is now far too well settled in law that the principles of natural justice, i.e. giving opportunity to be heard before an adverse order is passed, is to be read into a statute even though there is no express provision there in for complying with the same unless the context of the statue excludes the rule of audi alteram partem. In other words, the rule of hearing a person is of universal application and is to be read as a provision of all statutes except where, because of specific contingencies affording such opportunity is rendered impossible or impracticable. I had the occasion to deal with the question recently in Criminal Misc. Case No. 197/85 decided on 19.9.85, (1988) I OCR 612 (Orient Paper & Industries Ltd. and Anr. v. The Registrar of Companies, Orissa) holding that the application of the principle of natural justice is not confined only to constitutional remedies but applies to all spheres of administrative or judicial activities by which one's right is to be affected and it is fundamental to judicial thought that before a right is affected, the person affected must be given a hearing to put forth his side of the case. In : AIR 1986 S.C. 1571 (Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly) it was observed in para 99 as follows:

(3.) IT has also been urged by the learned Addl. Standing Counsel relying on, 32 (1966) CLT 93 (Ramesh Chandra Mohapatra v. State) that since bond executed is a contract, its terms are to be strictly enforced and since a person has bound himself to pay the penalty in the event of forfeiture of bond, the applicability of the principle of natural justice must be ruled out, The submission does not at all appeal to me since there is nothing in the decision which is contrary to the decision reported in : 34 (1968) CLT 58 as also the other decisions referred to above on the question of applicability of the principle of natural justice. The agreement to pay the penalty where the bond is forfeited may be a contract, but the very act of forfeiture is an adverse act entailing cancellation of the bond and hence would call for the observance of the principle of natural justice. In view of the conclusion reached, it must be held that the order of forfeiture is liable to be quashed.