Sohan Singh vs State of Punjab

Jai Singh Sekhon, J. (Oral)

Petitioner, Sohan Singh, stood surety for Rakesh Kumar accused on 28th September, 1985, in the sum of Rs. 4000/ undertaking to ensure his presence on every date of hearing, in a case registered vide FIR No. 179 dated 25th May, 3985, at Police Station Sangrur. The aforesaid Rakesh Kumar failed to attend the Court on 7th November, 1985, which resulted in the institution of proceedings under Section 446, Criminal Procedure Code against the surety. In reply to the notice, the surety simply prayed for time to produce the accused before the trial Court. The trial Court directed that the entire surety amount be realised from him as a penalty. In appeal, the amount of penalty was reduced to Rs. 2000/ by the learned Additional Sessions judge, Sangrur. Feeling aggrieved by the said order, the petitioner has filed the present revision petition in this Court.

There is considerable force in the contention of the learned counsel for the petitioner that the trial Court had failed to comply with the mandatory provisions of Section 446, Criminal Procedure Code, in not passing an order regarding the forfeiture of the personal and surety bonds after Rakesh Kumar had absented from the trial Court on 17th May, 1985. Mr. Pawan Mutneja, learned counsel appearing on behalf of the State, contends that in view of the admission of the petitioner about having stood surety, this lapse on the part of the trial Court is of no consequence.

The bare perusal of the provisions of subsection (1) of Section 446, Criminal Procedure Code, shows that the Court is bound to record findings about its satisfaction regarding forfeiture of the bonds etc., after the accused had failed to appear before it. Strange enough no such order was passed by the trial Court on 17th September, 1985 or subsequently. The matter does not rest here as the perusal of the original surety bond shows that it was not accepted by the trial Court and only the personal bond of Rakesh Kumar accused was accepted, though both these bonds are printed on the same paper, but the acceptance order figures on the personal bond only.

Under these circumstances, it cannot be said that there was building contract between the surety and the State to pay the surety amount in case of the failure of the accused to attend the Court.

For the foregoing reasons, this revision petition stands accepted and the orders of the trial Court as well of the Appellate Court are set aside.