Delhi District Court
Mohit Dedha vs State (Nct Of Delhi) Virender on 14 July, 2023
IN THE COURT OF V. K. BANSAL,
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
Crl. Appeal No.07/2023
CNR No.DLNE01-000329-2023
In the matter of:
1.Mohit Dedha
S/o Sh. Ram Singh
R/o H. No.142, Street no.1,
Khajuri Khas Gaon,
North East Delhi,
Delhi-110094.
&
2.Laxman Singh
S/o Sh. Ram Singh
R/o H. No.142, Street no.1,
Khajuri Khas Gaon,
North East Delhi,
Delhi-110094. .........Appellants
Versus
1.State (NCT of Delhi) VIRENDER
KUMAR
BANSAL
& Digitally signed
by VIRENDER
KUMAR
2.Sh. Satpal BANSAL
Date: 2023.07.14
16:57:10 +0530
S/o Late Sh. Nain Singh
R/o H. No.86/1, Gali no.2,
Sher Pur Gaon, Delhi-94. ...........Respondent
CA no.07/23 Mohit Dedha Vs. State Page 1/6
Date of registration of appeal: 30.01.2023
Date when appeal was received by this Court: 01.02.2023
Date of conclusion of arguments: 13.07.2023
Date of pronouncement of judgment: 14.07.2023
ORDER
1. The present appeal has been preferred challenging the orders dated 27.07.2022 and 16.01.2023 whereby the Ld. Trial Court has passed the following orders:
"27.07.2022 Present: Sh. R. K. Sharma, counsel for the complainant.
Counsel Shri Anand Kataria for accused.
B.Ws received back executed.
However, accused has not entered appearance.
Exemption application of accused stands dismissed as the accused has failed to appear despite execution of bailable warrants.
Accordingly, B.Ws stands forfeited. Let NBWs be issued against the accused to be executed through SHO concerned.
Further, warrants of attachment in the sum of Rs.50,000/- be issued against the surety for deposit as the surety has failed to secure presence of the accused.
Be put up for consideration on noticce on 06.12.2022.
-sd/-
(Rupinder Singh Dhiman) MM-01/NE/KKD/27.07.2022 16.01.2023 Present: Complainant in person with proxy counsel Ms. Richa Sharma.
Accused in person with counsel Sh. Anant Katariya and Anurag Singh.
Surety Mohit Dedha in person.
As per Reader report, an application for VIRENDER cancellation of NBW has been filed by the accused. KUMAR BANSAL File perused.
Perusal of record shows that accused had Digitally signed by VIRENDER not appeared despite execution of B/Ws. Further, Bail KUMAR BANSAL Bond was forfeited on 27.07.2022. Today, accused and Date:
2023.07.14 surety have appeared. 16:57:20 +0530 CA no.07/23 Mohit Dedha Vs. State Page 2/6 Submissions heard. Record perused and carefully considered.
Fine of Rs.50,000/- deposited on behalf of surety.
Accordingly, warrants of attachment stands stayed qua the surety.
Surety submits that he wishes to continue as surety of accused and regular bail bond would be furnished on next date of hearing.
Last warning is given to the accused. Be put up on 30.01.2023 for payment of fine on behalf of accused and furnishing of regular bail bond. NBW stands stayed till next date of hearing.
-sd/-
(Rupinder Singh Dhiman) MM-01/NE/KKD/16.01.2023"
2. Vide order dated 16.01.2023 fine of Rs.50,000/- was deposited on behalf of the surety and it was also directed by the Court that the accused shall also deposit fine.
3. Notice of the appeal was given to the respondent as well as State. The Trial Court record was also requisitioned.
4. I have heard Ld. counsel for the appellants, Ld. Addl. P. P. for the State, Ld. counsel for the respondent and perused the record.
5. The legal issue arises, whether the penalty on surety or on the accused can be imposed without issuing notice under Section 446 Cr.P.C. The record shows that on 11.03.2022, the accused failed to appear before the Ld. Trial Court and B/W in the sum of Rs.50,000/- with one surety in the like amount was issued against the accused/appellant no.2. The next date was 27.07.2022. The said order has already been reproduced above. On 27.07.2022, accused/appellant no.2 did not appear and court forfeited bail VIRENDER bond and NBW was issued against the accused/appellant no.2 to KUMAR BANSAL be executed through SHO and simultaneously issued warrant of Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.07.14 attachment in the sum of Rs.50,000/- against the surety. The law 16:57:32 +0530 CA no.07/23 Mohit Dedha Vs. State Page 3/6 requires that on violation of condition of Bail Bond, penalty is to be imposed as per procedure prescribed under Section 446 Cr.P.C Surprisingly, in this case notice under Section 446 Cr.P.C has not been served. Even there is no such order against surety Mohit Dedha appellant no.1 herein, who furnished surety bond on the bailable warrants issued against accused Laxman Singh appellant no.2 herein. Despite that surety deposited the penalty amount on 16.01.2023 though there was no such order on file either on 27.07.2022 and 06.12.2022. On 16.01.2023, the Ld. Trial Court again directed Laxman Singh appellant no.2 herein to pay the fine and stayed NBW till the next date of hearing. The record shows that part of fine amount has already been deposited by Laxman Singh appellant no.2 herein on 30.01.2023 and for depositing remaining fine amount next date was given. It is not clear from the entire file under which provision this fine has been received by the Court without passing of order of imposing any such fine.
6. As per law, if the condition of the bail bond are not complied or violated then before imposing the penalty the procedure has been prescribed under Section 446 Cr.P.C which is 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 VIRENDER grounds of such proof, and may call upon any person KUMAR BANSAL bound by such bond to pay the penalty thereof or to show Digitally signed by VIRENDER cause why it should not be paid. KUMAR BANSAL Date: 2023.07.14 16:57:42 +0530 Explanation. - A condition in a bond for appearance, or CA no.07/23 Mohit Dedha Vs. State Page 4/6 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 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.
7. The record shows that no such procedure has been adopted. No notice under Section 446 Cr.P.C. was given to the appellants herein before imposing the penalty. The order directing the appellants herein to deposit the fine without following the procedure is not known to the law, hence, same cannot be upheld. The order passed by the Court whereby Mohit Dedha appellant no.1 herein was directed to deposit Rs.50,000/- and the order whereby the Trial Court got deposited Rs.25,000/-
VIRENDER KUMAR from appellant no.2 and further directed him to deposit the BANSAL remaining fine of Rs.25,000/- is not sustainable and same is set Digitally signed by VIRENDER KUMAR BANSAL aside. Consequently, the amount already deposited be returned to Date: 2023.07.14 16:57:50 +0530 the persons from whom the amount was received. The appeal is, CA no.07/23 Mohit Dedha Vs. State Page 5/6 accordingly, allowed.
8. Copy of the order along with Trial Court record be sent back. Appeal file be consigned to the Record Room. Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL Announced in the open (V. K. BANSAL) BANSAL Date:
2023.07.14 court today i.e on 14th Principal District & Sessions Judge, 16:57:59 +0530 July, 2023 North East, Karkardooma Courts, Delhi.CA no.07/23 Mohit Dedha Vs. State Page 6/6