Pappu vs State of U.P.

Vijay Kumar Verma, J.—"Whether condition to deposit the amount of earlier executed personal bond can be imposed at the time of granting fresh bail", is the main point that falls for consideration in this bail application moved u/s 439(1)(b) of the Code of Criminal Procedure (in short, ''the Cr. P.C.''), in which it is prayed that condition imposed by the Special Judge (Gangster Act) Bareilly in Case No. 64 of 2009 arising out of Case Crime No. 397 of 2003, u/s 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 (in short ''the Gangster Act''), for dispositing Rs. 50,000 in Court as penalty be set aside.

I have heard arguments of Sri Sanjiv Kumar Gupta, advocate appearing for the applicant and A.G.A. for the State.

From the impugned order (Annexure-2) it is revealed that the applicant Pappu and Ganga Singh were accused in the F.I.R. lodged on 22.11.2003 at P. S. Sahaswan, district Budaun at Case Crime No. 397 of 2003, u/s 2/3 of Gangster Act. After investigation, charge-sheet was filed in the Court of Special Judge (Gangster Act) Bareilly, where Case No. 64 of 2009 was registered against the accused persons. It appears that the applicant Pappu became absent on 23.2.2005 and hence non-bailable warrant was issued against him and when he did not appear, process u/s 82/83, Cr. P.C. was issued and notices were also issued to his sureties. From the impugned order, it is further revealed that vide order dated 9.5.2007 personal bond of the accused and surety bonds of the sureties were forfeited and warrant for recovery to realize the amount of personal and surety bonds were issued. An order was passed again on 28.2.2009 to realize the amount of personal bond from the accused Pappu. Thereafter the accused-applicant Pappu was arrested on 6.4.2009 and when application for bail was moved on his behalf, the court below passed the impugned order dated 30.4.2009, whereby the applicant was released on bail on his executing a personal bond for Rs. 80,000 and furnishing two sureties each in the like amount. Simultaneously, a condition was imposed in the impugned order to deposit Rs. 50,000 by the applicant in Court as penalty. The applicant has approached this Court by means of this application to set aside the condition of depositing Rs. 50,000.

The main submission made by learned Counsel for the applicant was that at the time of granting fresh bail to the applicant, the court below could not impose the condition to deposit the amount of earlier executed personal bond without following the procedure provided u/s 446, Cr. P.C. and hence the condition imposed by the court below in the impugned order for depositing Rs. 50,000 by the applicant as penalty being wholly illegal and onerous deserves to be set aside. The contention of the learned Counsel was that the amount of earlier execution personal bond cannot be recovered as penalty without issuing notice to the accused and since in present case, no notice was issued by the court below to the applicant to show cause as required u/s 446, Cr. P.C., hence the order passed by the court below to realize the amount of personal bond from the applicant was wholly illegal, as at the time of granting bail to the applicant, condition to deposit Rs. 50,000 as penalty could not be imposed.

Next submission made by the learned Counsel for the applicant was that special procedure is provided in Section 446, Cr. P.C. to recover the amount of personal bond from the accused, if the said bond is forfeited and giving go-bye to that procedure, the amount of personal bond cannot be recovered through back-door by imposing condition of depositing the amount of personal bond as penalty at the time of granting fresh bail to the accused.

It was also submitted by learned Counsel for the applicant that condition imposed by the court below to deposit the amount Rs. 50,000 as penalty besides being illegal is onerous and unjustified. It was also submitted by learned Counsel that the applicant being very poor person is incapable to deposit the said amount and due to the condition imposed by the court below in the impugned order, the applicant has not been able to come out from jail, although the bail order was passed on 30.4.2009 and hence the condition of depositing Rs. 50,000 by the applicant as penalty should be quashed by this Court in exercising the power u/s 439(1)(b).

The A.G.A., on the other hand, submitted that the applicant was misusing the privilege of bail and hence, the court below was fully justified to impose the condition to deposit Rs. 50,000 by the applicant in Court as penalty.

Having given my thoughtful consideration to the rival submissions made by the parties counsel, the impugned order of imposing the condition to deposit Rs. 50,000 by the applicant in Court as penalty at the time of granting fresh bail to the applicant is wholly illegal and onerous.

If the bond executed by the accused or surety is forfeited, then special procedure is provided in Section 446, Cr. P.C. to recover the amount of that bond. Section 446, Cr. P.C. reads thus:

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 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 u/s 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 u/s 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.

In case of forfeiture of bond, complete procedure to recover the amount of bond is provided in Section 446, Cr. P.C. Before passing order to recover amount of bond as penalty, notice is required to be issued to the accused and his sureties to show cause as to why the amount of bond be not realized from them as penalty. Passing order to recover the amount of personal bond or surety bonds without giving opportunity to the accused or sureties to show cause is wholly illegal and unjustified. It is specifically provided in Section 446(1), Cr. P.C. that if a bond for appearance executed under this Code has been forfeited, then the Court shall record the grounds 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 (Italicising is mine). In view of this specific provision of Section 446(1), Cr. P.C., notice should be issued to the accused or sureties before passing order to recover the amount of personal bond or surety bonds to show cause as to why the amount of bond should not be recovered from him/them. Making order for recovery of the amount of personal bond or surety bonds without giving opportunity to the accused or sureties to show cause as stated above is wholly unjustified. There may be a valid reason for the absence of accused during trial. On being given opportunity to show cause after forfeiting personal bond of the accused, he can show that due to justified reason he would not appear in the Court. Therefore, calling upon the accused to show cause as to why the amount of personal bond be not recovered from him is essential requirement of law u/s 446, Cr. P.C. before passing order for making recovery of the amount of personal bond. Sub-section (2) of Section 446, Cr. P.C. specifically provides that if sufficient cause is not shown and penalty is not paid, the Court may proceed to recover the amount of bond as if such penalty were a fine imposed by it under this code. This Sub-section also shows that before passing order for recovery of the amount of bond, show cause notice should be issued to the accused or sureties and if sufficient cause is not shown, only then the amount of personal bond or surety bonds can be realized.

In present case, the impugned order shows that although notices were issued to the sureties, but no notice was issued to the applicant-accused Pappu before passing order to recover the amount of personal bond and issuing warrant of recovery against him. From the impugned order, it is revealed that personal bond of the accused and surety bonds of the sureties were forfeited vide order dated 9.5.2007 and after forfeiting personal bond and surety bonds, warrant of recovery was issued simultaneously. There is nothing in the impugned order to show that prior to issuing the warrant of recovery of the amount of personal bond as penalty, any notice was given to the applicant to show cause as to why the amount of personal bond be not realized from him. The court below in its impugned order has stated that in the interest of justice recovery of Rs. 50,000 towards the amount of personal bond appears to be justified. The reason given in the impugned order for making recovery of the amount of personal bond is that the applicant has misused the bail, due to which the time of the Court and police administration has been wasted in the execution of processes. Merely because the accused has misused the bail, the amount of personal bond cannot be recovered from him without giving opportunity to show cause why the amount of bond be not realized from him as penalty. The criminal courts at the time of granting fresh bail to the accused cannot recover the amount of previously executed personal bond by back-door imposing a condition to deposit the amount of bond in Court without giving opportunity to the accused to show cause why the amount of personal bond be not realized from him as penalty and following proper procedure as provided u/s 446, Cr. P.C.

The Hon''ble Apex Court has held in Munish Bhasin and Others Vs. State (Govt. of N.C.T. of Delhi) and Another, , that only such conditions can be imposed at the time of granting bail, which are permissible under the Code of Criminal Procedure. The Hon''ble Apex Court has held as under in para 10 of the report:

It is well-settled that while exercising discretion to release an accused u/s 438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail u/s 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all.

The following observations made in paras 11 and 12 of the report are also worth mentioning:

The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in Sub-section (2) of Section 438 and Sub-section (3) of Section 437 of the Code. Normally, conditions can be imposed (i) to secure the presence of the accused before the Investigating Officer or before the Court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court, or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court u/s 438 of the Code.

While imposing conditions on an accused who approaches the Court u/s 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed u/s 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail u/s 438 of the Code.

The High Court in aforesaid case had directed the accused to pay a sum of Rs. 12,500 per month by way of maintenance to his wife and child as a condition for grant of anticipatory bail. The Hon''ble Apex Court set-aside the said condition holding that the condition imposed by the High Court is onerous and unwarranted. Although aforesaid observations have been made by the Hon''ble Apex Court in the matter of granting anticipatory bail, but these observations should be kept in view at the time of passing order in regular bail applications also and the accused should not be subjected to irrelevant, uncalled for, onerous and unwarranted conditions and justice should not be denied by imposing such conditions. Endeavour of the Courts should be to do justice and not to dispense with it.

In view of the foregoing discussion, the condition of depositing Rs. 50,000 by way of penalty by the applicant Pappu in Court imposed by the court below in the impugned order dated 30.4.2009 is liable to set aside, being illegal, onerous and unwarranted.

Consequently, the application u/s 439(1)(b), Cr. P.C. is allowed and condition imposed by the Special Judge (Gangster Act), Bareilly, in Case No. 64 of 2009, State v. Ganga Singh and another Case No. 64 of 2009, u/s 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, directing the applicant Pappu to deposit Rs. 50,000 as penalty is hereby set aside.

On acceptance of fresh personal bond and surety bonds in pursuance of the impugned order, the applicant Pappu shall be set at liberty, if not required to be detained in jail for some other case.