Delhi District Court
Sh. Ravi Chabra vs The State on 14 November, 2011
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL); DELHI
Crl. Rev. No.88/11
Sh. Ravi Chabra,
S/o S. R.S. Chabra,
R/o 13/262, Geeta Colony,
Delhi - 31. .......Petitioner
Versus
The State .......Respondent
J U D G M E N T
Present revision petition has been filed by Sh. Ravi Chabra (petitioner), who stood surety for accused Shagun Pulani for his appearance before the court of Addl. Chief Metropolitan Magistrate, Tis Hazari Courts, in case FIR No.28/08, PS Economic Offences Wing District (Crime & Railways) for offences U/s 63 of Copy Right Act and 103 & 104 of Trade Marks Act.
2. Vide the impugned order dt.13.10.2011, the court of Addl. Chief Metropolitan Magistrate01, Tis Hazari Courts, imposed a penalty of Rs. 25,000/ upon the surety - petitioner while holding that he was unable to produce the accused - Shagun Pulani before the court despite service of notice upon him.
3. Arguments heard. File perused.
Crl. Rev. No.88/11 1
4. The penalty has been imposed upon the petitioner - surety U/s 446 Cr.P.C. A perusal of trial court record would reveal that while observing that bond stood forfeited, orders of issuance of NBW were passed against accused with notice to surety for 13.10.2011. Trial court record further reveals that on 12.10.2011 surety appeared before the Trial Court but he was burdened with penalty. As noticed above, since the surety did not deposited the amount of penalty, warrants of attachment were ordered to be issued against him.
5. Learned counsel for petitioner contended that the trial court has not followed the prescribed procedure before imposing penalty upon the surety - petitioner U/s 446 Cr.P.C. in as much as explanation of the surety - petitioner was not recorded by the trial court in pursuance to notice U/s 446 Cr.P.C. Therefore, the contention is that the impugned order deserves to be set aside.
6. Sec.446 Cr.P.C. provides that where it is proved to the satisfaction of the court before whom the accused is to appear or is to be produced, that the bond has been forfeited, the court is to record grounds of such proof and then the concerned court may either call upon the person bound by such bond to pay penalty or in the alternative to issue him show cause notice to appear and explain as to why he should not be called upon to pay the said penalty.
So, it is only after the court finds that sufficient cause has not Crl. Rev. No.88/11 2 been shown and penalty has not been paid that the court is to proceed to recover the penalty.
7. As noticed above on 13.10.2011 the surety - petitioner appeared before the court in pursuance of service of notice. A perusal of notice issued for 13.10.2011 would reveal that it contains both the clauses i.e. the surety was required to pay penalty of Rs.25,000/ and also to show cause as to why payment of this amount should not be enforced against him. In view of provisions of Sec.446 Cr.P.C., it was to be specified in the notice sent to the surety, whether it was for payment of penalty or to show cause. This could be done by striking of one of the two clauses as shown in the notice. However, one of the clauses was not struck off. Even otherwise, a perusal of order dt.28.07.2011 would reveal that on that date while observing that the bond stood forfeited, the concerned court did not pass any order requiring the surety to pay the penalty. Therefore, this very clause shown in the notice U/s 446 Cr.P.C. requiring the surety of penalty was to be struck of.
In said situation upon appearance before the court on 13.10.2011, the plea of the surety was to be recorded as to why payment of the amount of bond be not enforced against him. However, no such plea of the surety - petition appears to have been recorded before imposing penalty of Rs.25,000/ upon him.
8. In view of above discussion, this court finds that reasonable Crl. Rev. No.88/11 3 opportunity of being her having not been afforded to the surety - petitioner before imposing the penalty, the impugned order deserves to be set aside.
Accordingly, revision petition is allowed and the impugned order imposing penalty of Rs.25,000/ and directing issuance of warrants of against the surety - petitioner is hereby set aside. Learned counsel for petitioner has submitted that the amount of Rs.25,000/ has already been deposited by the surety - petitioner. Since the amount has already been deposited, as submitted, same is required to be refunded to the petitioner. Trial court to issue refund voucher to the petitioner.
However, the Trial Court shall be at liberty to issue fresh notice to the surety U/s 446 Cr.P.C. calling upon him to show cause as to why the amount of bond of the surety bond be not realized from him consequent upon forfeiture of the bond, and that too in accordance with law.
Surety to appear before the Trial Court on 24.11.2011.
Announced in Open Court
on 14.11.2011 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
Crl. Rev. No.88/11 4