Himachal Pradesh High Court
____________________________________________________________ vs State Of Himachal Pradesh on 18 December, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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Cr. MMO No. 543 of 2018 Reserved on : 12.12.2018 Date of decision : 18.12.2018.
____________________________________________________________ Mandeep Singh .....Petitioner.
Versus State of Himachal Pradesh ...Respondent.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? No. For the Petitioner : Mr. P. S. Goverdhan, Advocate.
For the Respondent : Mr. Sudhir Bhatngar, Addl. A.G., with Mr. Bhupinder Thakur Dy.
A.G. Tarlok Singh Chauhan, Judge This petition under Section 482 of the Code of Criminal Procedure (for short 'Code') is directed against the order of issuance of proclamation passed by the learned Magistrate on 30.08.2018 and the order dated 30.10.2018, whereby the petitioner has not only been declared as proclaimed person but has further been ordered to be arrested as and when found.
2. Brief facts giving rise to the filing of present petition are that petitioner had stood surety to one Smt. Kanti Gulati wife of Shri Vishal Gulati, accused in complaint filed by one Smt. Kush Lata under Section 138 of the Negotiable Instruments Act (for short ' Act'). On 08.05.2015, it was reported that non bailable ::: Downloaded on - 19/12/2018 22:56:16 :::HCHP 2 warrants that were issued against the accused had been received .
back unexecuted, therefore, her bail bonds were cancelled and forfeited in favour of the State of Himachal Pradesh and further proceedings under Section 446 of the Code were ordered to be initiated against her as well as the petitioner herein. It is averred that the order dated 08.05.2015, forfeiting the surety bond was never served upon the petitioner, nor the copy thereof received by him and in support of such contention copies of the entire zimini orders passed from time to time have been annexed.
3. After initially issuing bailable warrants against the petitioner, the trial Magistrate proceeded to issue non bailable warrants vide order dated 30.11.2017 and when the said warrants were not received back, the learned Magistrate on 30.08.2018 proceeded to pass the following order:-
30.08.2018 Present:- Smt. Anjana Sharma, Ld. APP for State.
None for surety/respondent.
NBW issued to respondent not received back. Perusal of case file shows that NBW unexecuted. Thus from material on record, it appears that either respondent has absconded or is concealing himself in such a way as to avoid the process issued against him. Thus, I am of the opinion that respondent cannot be served through ordinary process. As such there are sufficient ground to call his presence before this Court through proclamation under Section 82 Cr.P.C. Let proclamation under Section 82 of Cr.P.C. be issued calling the presence of respondent before this court at 10:00 am sharp on 05.10.2018. A note with red ink in Hindi vernacular be also made to effect ::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 3 proclamation one month before the next hearing. Report of .
serving constable be also called for date fixed and serving constable is directed to appear in person on date fixed.
Sd/-
Pratibha Negi JMIC-1, Solan
4. When the case was subsequently listed before the Magistrate on 05.11.2018, it was reported that proclamation has been received back executed and the matter was ordered to be adjourned to 30.10.2018 for the presence of the serving constable.
When the case came to be listed on 30.10.2018, the learned Magistrate then proceeded to pass the following order:-
30.10.2018 Present:- Smt. Anjana Sharma, Ld. APP for State None for surety/respondent Proclamation under Section 82 of Cr.P.C. received back duly effected. The statement of serving constable C. Ajay Kumar No. 648 has also been recorded to that effect. From the perusal of the proclamation, report and statement of the serving constable and other material on record it appears that proclamation has been duly executed in accordance with law.
The respondent had ample opportunity to appear before the Court, however, he has failed to do so. As such, as per the provisions of law respondent/surety Mandeep Singh son of Sh. Jasbir is declared as proclaimed person. Let copy of the order be sent to the concerned SHO through Dy. S. P. Solan for necessary action under Section 41(c) Cr.P.C. and to arrest the respondent as and when he is found. Let warrant of realization under Section 421 of Cr.P.C. be issued for 18.12.2018. Cr. Ahlmad to do needful.
Sd/-
Judicial Magistrate Ist Class, ::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 4 Court No. 1, Solan, District Solan, H.P. .
5. It is vehemently argued by Shri P. S. Goverdhan, learned counsel for the petitioner that the learned Magistrate exceeded its jurisdiction vested under law while exercising power under Section 446 of the Code and illegally exercised power under Section 82 of the Code, little realizing that the said provisions were not applicable in view of the specific provisions contemplated in Sections 446 and 446A of the Code. It is further argued that on forfeiture of surety bond mandatory, show cause notice was required to be issued upon the petitioner and only in case his response was found unsatisfactory, could the learned Magistrate have proceeded to impose penalty and further if such penalty was not paid only then and then alone could the proceedings under Section 421A of the Code for realisation of the fine amount have been resorted to.
6. Therefore, there was no occasion much less a reason to have directly resorted to the provision of Section 73 of the Code, thereby procuring the presence of the petitioner by issuance of non bailable warrants inasmuch as at no point of time the mandatory show cause notice was ever issued to the petitioner.
Even otherwise the issuance of non bailable warrants against the petitioner is not tenable in the eyes of law as the same in ::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 5 consonance and in conformity with Clause (2) of Section 446 of the .
Code.
7. On the other hand, Mr. Sudhir Bhatnagar, learned Additional Advocate General, would argue that the impugned orders herein have been passed in conformity with law and, therefore, need to be upheld.
I have heard learned counsel for the parties and have gone through the records of the case.
8. In order to appreciate the controversy in question, it would be necessary to make note of the relevant provisions of Cr.P.C., which read thus:
41. When police may arrest without warrant.-- Any police officer may without an order from a Magistrate and without a warrant, arrest any person--
1(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:--
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary--
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or ::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 6
(d) to prevent such person from making any inducement, threat or promise to any person .
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.] (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e)who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub -
section (5) of section 356; or (I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 7
(2) Subject to the provisions of section 42, no person .
concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.
62. Summons how served.--(1)Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.
64. Service when persons summoned cannot be found.-- Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.
Explanation.--A servant is not a member of the family within the meaning of this section.
65. Procedure when service cannot be effected as before provided.-- If service cannot by the exercise of due diligence be effected as provided in section 62, section 63 or section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.
73. Warrant may be directed to any person.-- (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.
(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose ::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 8 arrest it was issued, is in, or enters on, any land or other property under his charge.
.
(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.
82. Proclamation for person absconding.--(1)If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:--
(i)(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (I) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.\ (4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as ::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 9 they apply to the proclamation published under sub-section (1).
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421. Warrant for levy of fine.--(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may --
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357.
(2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
446. Procedure when bond has been forfeited.--(1) Where a bond under this Code is for appearance, or for production of property, before a Court an d it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay ::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 10 the penalty thereof or to show cause why it should not be paid.
.
Explanation.-- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code:
Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.] (3) The Court may, [after recording its reasons for doing so ], remit any portion of the penalty mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeit ed, his estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.
446A. Cancellation of bond and bail bond.--Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition--
(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and
(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:
::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 11Provided that subject to any other provisions of this Code .
he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient.
9. The process to compel the appearance is provided under Chapter 6 of the Code and Section 62 thereof prescribes how to serve summons. Section 64 prescribes with the service when persons summoned cannot be found and Section 65 deals with procedure when service cannot be effected as provided under Sections 62, 63 and 64 of the Code by the serving officer.
10. Evidently, the procedure prescribed under Sections 64 and 65 of the Code has not been followed by the learned Magistrate in this case.
11. Section 446 of the Code prescribes the procedure when bond has been forfeited whereas Section 446A of the Code prescribes for the procedure for cancellation of bond and bail bond.
12. A conjoint reading of sub sections (1) and (2) of Section 446 makes it abundantly clear that on forfeiture of surety bond, mandatory show cause notice is required to be issued to the surety and only in case the response to the show cause notice is found unsatisfactory, the learned Magistrate proceed to impose penalty and if such penalty is not paid then proceeds under Section 421 of the Code.::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 12
13. The Court has to exercise extreme caution and has to .
be circumspect while forfeiting surety bond. It has to record the grounds for such action and thereafter issue show cause notice.
The importance of notice was considered by the Hon'ble Supreme Court in Ghulam Mehdi v. State of Rajasthan AIR 1960 SC 1185 and it has held that Section 514 Cr.P.C. shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause, only then can the Court proceed to recover the money. When no opportunity has been given to a surety to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance with law and should therefore be quashed.
14. Before issuance of show cause notice to the person surety, the Magistrate is to satisfy himself that there is a prima facie material for such forfeiture of bond and before forfeiture and issue of distress warrant, an opportunity should be given to the person surety. Thus, two ingredients are to be fulfilled, the first one is the proof that the bond has been forfeited and record of the grounds of proof and, second step is calling upon the person surety to pay penalty or to show cause as to why necessary orders should not be passed in terms of the related bond(s) and the reasons for that satisfaction must be recorded in writing.
::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 1315. When the bond is forfeited, it is the duty of the Court .
to record grounds of proof on which the forfeiture is based. After this, the Court may call upon the person bound by such bond to pay the penalty or to show cause why it should not be paid.
However, before passing an order of forfeiture, the Court should come to a finding based on some evidence that the bond has been forfeited and then it has to record the grounds of such proof. It is only when this is done, that a notice is to be issued to show cause why the penalty should not be realised. The conditions in the bond must have been broken before it can be forfeited.
16. If the sureties to whom the notice has been issued to show cause for recovery of penalty fail to appear, even then no warrant can be issued for his arrest. If surety fails to appear, the court can proceed to recover the amount of penalty by issuing warrant of attachment of property. Warrant for his arrest can be issued only when proviso to sub section (2) of Section 446, in the event when the amount of penalty has not been paid and cannot be recovered in that case the detention can be in the civil jail and the maximum period can be only six months. After forfeiture, the Court should call upon the surety to show cause why he should not be ordered to pay the penalty. After giving him opportunity, if he still does not show cause or does not pay the penalty, then warrants of his arrest can be issued.
::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 1417. Thus, there was no occasion or reason for the learned .
Magistrate to have resorted to the provisions of Section 73 of the Code, thereby procuring the presence of the petitioner by issuing non bailable warrants as admittedly no prior mandatory show cause notice had been issued to the petitioner.
18. However, what is most surprising is the manner in which the learned Magistrate has resorted to Section 82 of the Code by not only declaring the petitioner proclaimed offender but has further directed to arrest him as and when found. To say the least, this course was not warranted and above all could not have been resorted to after all the petitioner at best was a proclaimed person and not a proclaimed offender.
19. Apart from above, the learned Magistrate did not even bother or care to ensure that the proclamation as carried out provided for at least 30 days time requiring the petitioner to appear at a specific place and at a specific time in terms of sub Section (1) of Section 82, as admittedly the proclamation was got published on 08.09.2018, thereby calling upon the petitioner to appear before the learned Magistrate on 05.10.2018, which is less than the minimum 30 days period as prescribed under sub section (1) of Section 82 of the Code.
20. In view of the aforesaid discussion and reason, I find merit in this petition and the same is accordingly allowed.
::: Downloaded on - 19/12/2018 22:56:17 :::HCHP 15Consequently, the impugned order of issuance of proclamation .
dated 30.08.2018 and the order of declaration of proclaimed person dated 30.10.2018 are quashed and set aside. Further the order dated 30.11.2017 and all subsequent orders passed thereafter whereby non bailable warrants have been issued against the petitioner are also quashed and set aside and resultantly the warrants of recovery of fine under Section 421 of the Code issued on 13.11.2018 (Annexure P-5) is also quashed and set aside.
18th December, 2018 (Tarlok Singh Chauhan),
(sanjeev) Judge
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