Delhi District Court
State vs Prem Raj on 15 January, 2008
1
IN THE COURT OF SH DINESH KR. SHARMA, ADDL. SESSIONS
JUDGE: DELHI.
CRIMINAL REVISION NO. 45/2007
STATE ................PETITIONER.
VERSUS
PREM RAJ
S/O SH. NOBAT RAM,
R/O 11/49, DAKSHINPURI,
NEW DELHI. .............RESPONDENT.
ORDER:-
1. This is an appeal filed under section 449 Cr.P.C. on behalf of Surety Charanjeet Gogia against the order dt. 27.09.2007 passed by learned Metropolitan Magistrate vide which learned Metropolitan Magistrate was pleased to dismiss the application of the surety for remittance of the surety amount.
2. Trial court record was called. I have perused the same.
3. Perusal of the Trial court record indicates that the Traffic Challan under section 66/192 M.V. Act read with other provisions of the Motor Vehicle Act was filed against the appellant before the court of learned Special Metropolitan Magistrate. Learned special Metropolitan Magistrate directed the accused to appear before learned CMM on 03.07.2006 as the appellant seems to have 2 exercised his option to contest the challan. Learned CMM vide order dt. 14.07.2006 assigned the challan to the court of learned Metropolitan Magistrate, and the appellant was directed to appear before learned Metropolitan Magistrate on 30.08.2006.
4. On 30.08.2006, accused failed to appear and, therefore, NBWs were issued against the accused and notice to the surety was also issued for 02.01.2007.
5. On 02.01.2007, the surety/appellant appeared before the court and moved an application seeking time to produce the accused. It is worthwhile to mention that notice under section 446 of Cr.P.C. as prescribed in Code of Criminal Procedure was duly served upon the surety . On the request of the surety, the case was adjourned for 24.03.2007 and the surety was directed to produce the accused. On 24.03.2007, neither the surety nor the accused appeared and on this date, learned Metropolitan Magistrate ordered that bail bond stands forfeited and a fine of Rs. 5,000/- was imposed upon the surety. It was further directed that in default of payment of fine, the appellant shall undergone Civil Prison for three months.
6. Perusal of the record indicates that the surety/appellant has deposited the penalty amount. The plea of the appellant is that the learned Metropolitan Magistrate could not have imposed the penalty on the same day when the bail bond was forfeited. It has been argued that since show cause notice was not issued, therefore, the order is patently illegal and is liable to be set aside.
7. In support of his contention, learned counsel for the accused has placed reliance on Yashodha Vs. State, 1994 JCC 535; Ramesh Kumar Vs. State 1994 JCC 537; Ghulam Mehdi Vs. State of 3 Rajasthan 1960 Supreme Court 1185; Inder Singh Vs. The state of Punjab, 1981 C. C. Cases 210 (P&H).
8. I have carefully gone through all the judgments cited by the learned counsel for appellant.
9. Section 446 sub section 1 and 2 of the Code of Civil Procedure provides as under :
(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 ground of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. (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 extent to six months.)
10. In the present case, notice under section 446 Cr.P.C. was duly served upon the appellant for 02.01.2007 and on the same day, 4 the appellant sought time to produce the accused and he was given time till 24.03.2007.
11. On 24.03.2007, learned trial court imposed the penalty only after the surety failed to produce the accused. In Yashoda Vs. State (supra) , it was interalia held as under :
"Section 446 of the Code of Criminal Procedure which deals with the procedure when a bond has been forfeited clearly lays down that once it is so forfeited, the Court may call upon the person bound by such bond to pay the penalty there of or to show cause why it should not be paid. It would thus be clear that before any person bound by such bond becomes liable to pay th penalty there of it is required of the Court to give notice to him as to why it should not be paid and if he fails to show sufficient cause only then it can proceed to recover the amount of penalty imposed. Significantly no notice to the surety is contemplated before the forfeiture of the bond. Under the circumstance, Sub- Section s (1) of Section 446 of the Code which requires issue of the notice to the surety after forfeiture of the bond needs to be complied with strictly, the same being of a penal nature. It was observed by the Supreme Court in Ghulam Mehdi Vs. State of Rajasthan, AIR 1969 SC 1185.
" Before a man can be penalised forms of Law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay.
"Since, in the present case, no show cause notice as required was given, the 5 impugned order cannot be said to be in accordance with law, consequently, it is set aside."
1. The facts of the present case are distinct. Notice under section 446 Cr.P.C. was duly served upon the surety. He appeared and sought time to produce the accused but failed. By implication, when a notice under section 446 Cr.P.C. is issued, going by the spirit of the provisions as laid down under section 446 Cr.P.C., the bonds stands forfeited. In this regard we have to look upon the undertaking of the surety given at the time when the bail bond was furnished. Even if we peruse the notice under section 446 Cr.P.C. which is served upon the surety, it also reads that the surety is required to pay the said penalty or show cause before the next date of hearing that why payment of the said sum should not be enforced against him.
2. In this case, the surety sought time to produce the accused and , thereafter, he failed to produce the accused nor did he come forward to explain for this default. It is by natural corollary that the surety has failed to show cause that why he should not be directed to pay the penalty amount. It is cardinal principle that provisions are required to be interpreted in a manner which fulfills its purpose. Even the literal interpretation which frustrates the purpose of law should be avoided. The authorities cited by the learned counsel for the appellant is respectfully distinguishable on the fact and circumstances of the case.
63. In these circumstances, I consider that there is no force in the appeal, hence the same is dismissed. With these observations, the appeal is dismissed. Trial court record be sent back along with copy of this order. Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 15.01.2008.
(DINESH KR. SHARMA) ADDL. SESSION JUDGE, DELHI 7 15.01.2008.
Present :- Ms Alka Goel, APP for the State.
Appellant in person with counsel.
Vide my orders announced on even dates on separate sheets, the appeal is dismissed. Trial court record be sent back along with copy of this order. Appeal file be consigned to Record Room.
(DINESH KR. SHARMA) ASJ/DELHI.
15.01.2008.