Himachal Pradesh High Court
Sunita vs State Of Himachal Pradesh on 21 March, 2024
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 189 of 2023 .
Reserved on: 22.12.2023
Decided on : 21.03.2024
Sunita ...Appellant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting? 1 For the appellant : Mr. G.R. Palsra, Advocate.
For the respondent : Mr. Tejasvi Sharma, Addl. A.G with Mr. Mohinder Zharaick, Addl. A.G and Ms. Leena Guleria, Dy. A.G. Virender Singh, Judge.
Appellant-Sunita has filed the present appeal, under Section 449 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), against the order dated 25.04.2023 passed by the Court of learned Special Judge, Mandi, District Mandi, H.P. (hereinafter referred to as 'learned trial Court') in Cr.M.A No. 622 of 2023 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 05/04/2024 20:36:56 :::CIS 2(proceedings under Section 446 Cr.P.C.) in Police Challan No. 52-I/2012/40-II/12, decided on 31.05.2016.
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2. According to the appellant, she stood surety for accused Badal and Vinay Kumar @ Vinu in Police Challan No.52-I/2012/40-II/12, decided on 31.05.2016. Since, accused Vinay Kumar @ Vinu could not appear as he was confined to bed, as such, on 30.09.2021, the surety bonds furnished by the appellant has been forfeited and the proceedings under Section 446 Cr.P.C were initiated against her by the learned trial Court.
3. It is the further case of the appellant, that on 24.11.2021, the learned trial Court without issuing any show cause notice or affording opportunity to file reply to the appellant, directly imposed penalty of Rs.50,000/- on the appellant and issued warrants of realization to the Collector, returnable for 05.01.2022.
4. It is further case of the appellant that as per report of Naib Tehsildar, Sadar. Mandi the appellant has no movable or immovable property in her name.
5. Highlighting the fact that in order dated 24.11.2021, it has been mentioned that accused Vinay Kumar @ Vinu is confined to bed and unable to move, even ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 3 then, the learned trial Court has passed the order dated 25.04.2023. Not only this, the learned trial Court on .
25.04.2023 has ordered that the appellant shall be liable for civil imprisonment for a period of five months or payment of penalty whichever is earlier.
6. On the basis of above factual position, the order impugned has been challenged on the ground that the said order has been passed without affording any opportunity of hearing to the appellant and she has been condemned unheard.
7. Highlighting the fact that accused Vinay Kumar @ Vinu earlier used to appear on each and every date of hearing before the learned trial Court, but later on, he was confined to bed and due to his ailment, he was admitted in the Zonal Hospital, Mandi on 03.01.2021 and thereafter, he was referred to Shri Lal Bahadur Shastri Medical College and Hospital Nerchowk, Mandi on 05.01.2021. He was again admitted in the Zonal Hospital from 23.10.2021 to 25.10.2021.
8. These facts have been highlighted to show that accused Vinay Kumar @ Vinu was having the reasonable and sufficient cause for not appearing before the learned ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 4 trial Court and the learned trial Court has not considered these facts and the appellant was remanded to civil .
imprisonment for a period of five months. The procedure, as per provisions of Section 446 Cr.P.C, according to the appellant, has not been followed.
9. On the basis of above facts, a prayer has been made to allow the appeal, by setting aside the impugned order.
10. rPer contra, the prayer so made in the appeal, has been opposed by Mr. Tejasvi Sharma, learned Additional Advocate General appearing for the State on the ground that the impugned order does not require any interference as the same has been passed in accordance with the provisions of Cr.P.C.
11. Perusal of the record shows that convict Vinay Kumar @ Vinu has preferred the appeal before the learned Additional Sessions Judge, Mandi, District Mandi, H.P. In the said appeal, he has moved an application under Section 389 Cr.P.C, which was decided on 02.07.2016, by passing the following order:-
"The applicant has filed an application under section 389 of the Cr.P.C for the suspension of sentence ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 5 passed by the Id trial court. The Id trial court vide its judgment dated 31.5.2016 in police challan no. 11500/2012 has sentenced the convict to undergo .
simple imprisonment for ten months under section 379 read with section 34 of IPC. The applicant has made prayer for suspending the sentence. There are some arguable points in the appeal which are not likely to be taken earlier for hearing. Hence, the application is allowed and the operation of conviction and sentence is suspended subject to the conditions that the applicant shall furnish personal bond in the sum of Rs 50,000/- with one surety in the like amount before the Id trial court within 30 days with the undertaking therein to appear before the Id trial court to receive the sentence in the event of failure of appeal. The application stands disposed off. It be tagged with the main appeal"
12. In pursuance to the said order, convict Vinay Kumar @ Vinu and appellant Sunita has furnished requisite bail bond and surety bond on 29.07.2016.
13. Since, convict Vinay Kumar @ Vinu has not adhered to the solemn undertaking given by him, as such, proceedings under Section 446 Cr.P.C were ordered to be initiated against him, as well as, his surety. Order dated 30.09.2021, passed by the learned trial Court, is reproduced as under:-
::: Downloaded on - 05/04/2024 20:36:56 :::CIS 6"Appellant/accused Vinay is not present. It is reported that his address is not correct. His surety Sunita is served, but has failed to appear or to produce the accused Vinay. She has not assigned any reasonable cause for non .
production of accused Vinay. Therefore, The surety bond is forfeited to the State of H.P. Proceeding under Section 446 Cr.P.C. be initiated against her separately.
Accused/appellant Vinay Kumar be summoned by non bailable warrants returnable for 24-11- 2021."
14. On 30.09.2021, as per record, appellant was served, but, she has failed to produce accused Vinay Kumar nor could she assign any reasons for non-
production of accused Vinay Kumar @ Vinu. Hence, surety bonds so furnished by the appellant were forfeited to the State of H.P and proceedings under Section 446 Cr.P.C were initiated against her separately. Those notices were served for 24.11.2021. On that day, appellant Sunita was served but, she has not bothered to put appearance, as such, the learned trial Court has imposed the penalty of Rs.50,000/- and thereafter issued warrant for realization.
15. On 17.03.2023, the learned trial Court has passed the following order:-
"File taken up today as a report has been received from the Collector that the surety does not own any property and she is unable to pay the money. Therefore, there is no option but to sent the surety to ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 7 Civil Imprisonment as per proviso to Section 446(2) of Cr.P.C. Hence, non bailable warrants of arrest be issued to secure the presence of respondent-surety .
and to hear her on quantum of imprisonment for 27.04.2023."
16. Thereafter, on 25.04.2023, she was produced before the learned Sessions Judge, Mandi in pursuance of non-bailable warrants. Her explanation was found to be not plausible, as such, rejecting the said contention, the impugned order has been passed.
17. The provisions of Section 446 Cr.P.C are reproduced as under:-
"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 and 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 ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 8 pay 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 forfeited, 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 ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 9 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."
18. A Co-ordinate Bench of this Court in Narata Ram vs. State of H.P. 1993(2) ShimLC 193 has elaborately discussed the procedure to be followed, before taking action under Section 446 Cr.P.C. The relevant para 10 of the judgment is reproduced as under:-
"10. The Scheme of section 446 of the Code of Criminal Procedure envisages two stages, as indicated above. No doubt, accused did not appear nor they could be produced by the petitioner and non-bailable warrants had been issued for their appearance on 1st July, 1992. the Court below had also afforded an opportunity to the petitioner to produce the accused on 1st July, 1992. Had this last opportunity to procure the accused been afforded, the portion of the order dated 2th May, 1992. directing the forefeiture of the amount under the bonds was legal and valid and for the reasons stated above, the Court could be deemed to have satisfied regarding the existence of reasonable grounds for directing the forefeiture of the bond. Here, a composite order was passed. The petitioner could have produced the accused on 1st July, 1-92 and had he complied with the order to this effect, the ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 10 circumstances would not have attracted the issuance of order foreteiting the bonds Thus, in Such circumstances, the Court cannot be deemed to have .
satisfied itself as to the existence of grounds for directing the issuance of forefeiture of the bonds on 23th May, 1992 In other words, the trial Court committed an illegality by exercising jurisdiction improperly, which had also not been noticed by the appellate Court."
19. The decision of the Co-ordinate Bench of this Court has been followed by the learned Single Judge of Hon'ble High Court of Orissa in case titled as Dhameswar Sahoo and another vs. State of Orissa, 2014 141 AIC 628.
The relevant para 8 of the judgment is reproduced as under:-
"8. In Course of hearing Mr. Rath, learned Addl. Standing Counsel, brought to the notice of this Court to the reported case of Suryanarayan Mohapatra v. State of Orissa; (1989) 2 OCR 168, wherein this Court has held that it is now far too well settled in law that the principles of natural justice, ie 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 therein for complying with the same unless the context of the statute excluded the rule of audi alterarn partern. The Court further held that in other words, the rule of hearing a person is of universal application and is to be read as a provision ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 11 of all statutes except where, because of specific contingencies, affording such opportunity is rendered impossible or impracticable. Holding thus this Court .
has categorically held that the direction to forfeit the bond involves a process of decision making independent of the notice as to why the amount under the bond shall not be recovered from the executant. Therefore, it was further held that before such a decision is taken a hearing to the affected party becomes the demands of natural justice.
Therefore the Court held that the order to forfeit the bond without notice is illegal and is not sustainable in law."
20. The decision of the Co-ordinate Bench of this Court has also been followed by the Hon'ble High Court of Jammu & Kashmir and Ladakah at Jammu in case titled as Makhan Lal vs. Union Territory of Jammu & Kashmir, CRM(M) No.364 of 2022. The relevant para 4 of the judgment is reproduced as under:-
"4. High Court of Madras in a case titled Prapbakaran Petitioner Vs. The State represented by Inspector of Police, Lavindapadi Police Station Erode District Respondent (2010(1) MWN (Cr.) 368] relied by Ld. Counsel for petitioner, while considering the scope and import of section 446 of the Code of Criminal Procedure in para 10 of the judgment at pages 182 &183 held has under:-
10. I regret, I am unable to pursued myself to agree with the said view taken by Orissa High Court as well as Delhi High Court wherein the Ld. Judges have ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 12 taken the view that where there is failure of the accused to appear before the court no further enquiry or proof is necessary or contemplated for recording satisfaction. In my considered opinion mere failure to appear before the court in the absence of any .
willingness on part of the accused would not amount to a "breach". Manifestly there has to be animus on part of accused not to abide by or comply with the terms and conditions of the bond. Such animus alone makes the failure of accused to appear, a breach in terms of Section 446 of the Code. Such animus on the part of accused could be ascertained only after affording sufficient opportunity to the accused. On receipt of notice if the accused satisfies the court that he was prevented from appearing before the court due to sufficient reasons, the court may not record such satisfaction holding, that the accused has committed a breach of bond, the language "proved to the satisfaction needs to be underscored, which clears doubt, if any, that term "proof" held within it "disproof" by accused/surety also Such proof or disproof of animus can be arrived at only after sufficient opportunity to the accused/surety, Such opportunity shall satisfy the Principles of Natural Justice "Audi Alteram Partem which is not alien to criminal law as it has the sanction of the constitution of India. Therefore, before recording such satisfaction, notice to the accused is necessary and further enquiry should follow. On such enquiry only, the court has to get satisfied himself on proof as to whether there was any breach of the terms of bond and after so satisfied that breach has taken place then only such recording of satisfaction of the court will indicate breach of the term bond.
In 1994 CriLJ 491 [Narata Ram-Petitioner State Of Himachal Pradesh Respondent] relied by Ld. Counsel for petitioner, High Court of Himachal Pradesh while considering the scope and import of section 446 of the Code of Criminal Procedure (Cr.PC) in paras 6,7,8&10 of the judgment held as under:-
6. The fact that surety bond in the sum of Rs. 5000/-
in respect of each one of the accused persons was executed by the petitioner and that he had ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 13 undertaken to produce the accused persons before the Court and the fact of their failure to appear on any one of the dates, fixed for hearing is not disputed. Also, there is no controversy that the responsibility of surety arises from the execution of .
the surety bond by him and it is not contingent upon execution of a personal bond by the accused. Thus, the forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. [See: Ram Lal v. State of U.P., 1980 Cri LJ 826: (AIR 1979 SC 1498)]. Perusal of Section 446 of the Code of Criminal Procedure contemplates two stages. The first stage is for the Court to satisfy itself that bond has been forfeited. The second stage relates to the realisation of the forfeited amount of the bond. For this purpose, it has to give him notice either to pay the penalty or to show cause why it should not be paid. It is imperative to note that if there are sufficient circumstances before the Court, on the basis of which it can accept or reject the cause shown, it need not take any evidence.
7. It is also settled law that a notice to the surety cannot be issued, unless the order of forfeiture is passed. Thereafter, the Court has to consider the grounds made out by the surety in support of his case and after considering the case, on merits, if the Court is dissatisfied with the reasons shown, an order has to be made for the realisation of the penalty. I am supported in my view by the observations made in the case of Dhanvir v. State, 1975 Cri LJ 1347 (Him Pra).
8. In the instant case, a show-cause notice was issued to the petitioner on 25th May, 1992, pursuant to the order passed by the Sub-Divisional Judicial Magistrate. Close examination of the said order shows that none of the accused could be served for want of correct address nor either of them was otherwise present and, therefore, prosecution was ordered to furnish correct address of the accused, within seven days and get it served for their appearance on 1st July, 1992 through non-bailable warrants. It further shows that notice to Ashok Kumar, Advocate, who identified the personal bonds ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 14 of the accused, was also issued. Further, this order discloses that the petitioner showed his inability to produce either of the accused persons and this led to the order directing the forfeiture of the bonds by initiating proceedings under Section 446 of the Code .
of Criminal Procedure separately. The Court below further directed the issuance of show-cause notice to the petitioner as to why the amount under the bonds be not forfeited to the State of Himachal Pradesh.
Lastly, this order also shows that the petitioner was afforded another opportunity to produce the accused persons on 1st July, 1992. It was on the next date 1st July, 1992 that the final order imposing part penalty of Rs. 2000/ in case of each surety bond was passed. It would be pertinent to note that no fresh order forfeiting the bonds of the petitioner in respect of each surety bond was passed, nor any fresh show- cause notice was issued on 1st July, 1992, pursuant to the petitioner having expressed his inability to produce either of the accused persons in the Court.
10. The Scheme of Section 446 of the Code of Criminal Procedure envisages two stages, as indicated above. No doubt, accused did not appear nor they could be produced by the petitioner and non- bailable warrants had been issued for their appearance on 1st July.
1992, the Court below had also afforded an opportunity to the petitioner to produce the accused on 1st July, 1992. Had this last opportunity to produce the accused been afforded, the portion of the order dated 25th May, 1992, directing the forfeiture of the amount under the bonds was legal and valid and for the reasons stated above, the Court could be deemed to have satisfied regarding the existence of reasonable grounds for directing the forfeiture of the bond. Here, a composite order was passed. The petitioner could have produced the accused on 1st July, 1992 and had he complied with the order to this effect, the circumstances would not have attracted the issuance of order forfeiting the bonds. Thus, in such circumstances, the Court cannot be deemed to have satisfied itself as to the existence of grounds for directing the issuance of forfeiture of the bonds on 25th May, 1992. In other words, the trial Court committed an illegality by exercising jurisdiction ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 15 improperly, which had also not been noticed by the appellate Court.
Ratio of the judgments of "Prapbakaran"& "Narata Ram" (Supra) make the legal proposition manifestly .
clear, that before recording such satisfaction that breach has been committed, the court is required to issue notice and after affording opportunity to offer any explanation, if the court is not satisfied with the said explanation offered by the accused, then the court has to record such satisfaction that the terms of the bond have been breached which alone signifies the forfeiture of bond. Ratios of the judgments (Supra) squarely apply to the facts of the case in hand. In the case in hand, it is apt to reiterate here, that impugned order dated 15-02-2022 rendered by the court of Pr. Sessions Judge Samba does not signify that the provisions of Section 446 of Cr.PC has been complied with full rigor and the court has recorded the grounds of such proof in regard to forfeiture of surety bond/ cash surety to pay the penalty of ₹100000/- (Rs. One Lac) or show cause why the penalty should not be paid by the accused, as no notice to the accused before forfeiture of the bond has been issued, thereby, principles of natural justice has been violated. In the net result, the petition is allowed, whereby, the impugned order dated 15-02-2022, whereby, the cash security of petitioner has been forfeited, stands set aside/quashed. It is accordingly ordered, that CrMP No. 51/2021 CNR No. JKSB010004222021 r/w bail application No. 02/2021 on the files of Ld. Pr. Sessions Judge Samba stand revived/restored.
Resultantly, the Ld. Trial Court of Pr. Sessions Judge Samba would deal with the said applications of the petitioner afresh for releasing the cash amount of surety of ₹100000/- (Rs. One Lac) deposited in bail application No. 02/2021, forfeited and deposited in Government Treasury, after affording the opportunity of being heard to the accused strictly in accordance with the provisions of law governing the field.
21. Judging the facts and circumstances of the present case in the light of decisions cited supra, this Court is of the view that the learned trial Court has passed ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 16 the impugned order without following the prescribed procedure and the same is not sustainable in the eyes of .
law.
22. The learned trial Court has passed the composite order on 30.09.2021, whereas, no opportunity has been afforded to the appellant to produce accused Vinay Kumar. Learned trial Court has passed the said order for forfeiture of the surety bonds, without giving any opportunity to the appellant to produce the accused or to give any explanation, in this regard.
23. As per the scheme of Cr.P.C., before cancelling the surety bonds, the learned trial Court is required to issue show cause notice to the appellant, by calling upon her, as to why the surety bonds, so furnished, shall not be forfeited to the State of Himachal Pradesh and if the explanation is not found to be satisfactory or the appellant fails to appear or to give any satisfactory reply to the show cause notice, then, another show cause notice is required to be given, before imposing penalty, as imposition of penalty would be serious consequences.
24. In view of the discussion made above, the appeal is allowed and the impugned order dated ::: Downloaded on - 05/04/2024 20:36:56 :::CIS 17 25.04.2023 passed by the learned trial Court in Cr.M.A No.622 of 2023 (proceedings under Section 446 Cr.P.C.), in .
Police Challan No.52-I/2012/40-II/12, decided on 31.05.2016, is set aside. Consequently, the trial Court is directed to decide the matter afresh, after affording the opportunity of being heard to the accused and to the appellant, strictly in accordance with the provisions of Section 446 of Cr.P.C., as well as, observations, so made by this Court. r
23. Pending applications, if any, also stand disposed of.
24. Record be sent down.
( Virender Singh ) Judge March 21, 2024 ( naveen ) ::: Downloaded on - 05/04/2024 20:36:56 :::CIS