Sudhir Kumar vs State of U.P.

R.M. Chauhan, J.—Heard the learned Counsel for the Appellant and the learned A.G.A., on the point of admission and perused the impugned order.

This appeal has been directed by accused Sudhir Kumar S/o Sri Kamta Prasad R/o village Kiratpur, P.S. Sindhauli, District Shahjahanpur u/s 449 of the Code of Criminal Procedure (hereinafter referred to as "the Code") against the order dated 17th February, 2009 passed by the learned Additional Sessions Judge/Fast Track Court No. 2, District Shahjahanpur in Sessions Trial No. 953 of 2003, Sudhir Kumar Verma v. State Sessions Trial No. 953 of 2003, P. S. Sindhauli, District Shahjahnpur by which the learned Additional Sessions Judge while releasing the accused on bail has ordered him to deposit the amount of his personal bond by way of penalty as his personal bond had already been forfeited.

The only legal point involved in this appeal is whether the amount of personal bond of the accused Appellant can be realised from him after forfeiture of his personal bond without affording him any opportunity of hearing ?

The trial court''s record is not needed for consideration of this legal point. The appeal is, therefore, being finally disposed of at the admission stage with the consent of the learned Counsel for the parties.

The relevant facts giving rise to the present appeal is that the present accused Appellant alongwith another accused was facing trial in Sessions Trial No. 953 of 2003, State v. Sudhir Sessions Trial No. 953 of 2003, under Sections 323, 504, 506, 427 and 332, I.P.C. and Section 3(1)(x) of the S.C./S.T. Act, P. S. Sindhauli, District Shahjahanpur pending in the Court of the learned Additional Sessions Judge/Fast Track Court No. 2, Shahjahanpur. The accused were released on bail on their each executing personal bond of Rs. 15,000 with two sureties in the like amount. The accused on 28th January, 2009 were found absent when the case was called out for hearing while the P.W. 4 Dr. Shree Ram was present in the Court. The counsel for the accused moved an application for their exemption from personal appearance on that date, which was allowed by the Court. However, the examination-in-chief of Dr. Shree Ram, P.W. 4 was recorded by the Court on that date. The case was adjourned for the next day i.e., 29th January, 2009 for cross-examination of P.W. 4, Dr. Shree Ram. On that date neither the accused nor their counsel appeared before the Court, therefore, the Court ordered for issuance of non-bailable warrant against the accused and notice to the sureties. On the next date i.e., 12th February, 2009, the bail bonds of the accused and sureties were forfeited.

From a perusal of the impugned order it appears that the accused Appellant appeared on 17th February, 2009 before the trial court and moved an application for releasing him on bail. The trial court found that the bail bond of the accused had already been forfeited by the Court, therefore, the accused was liable to pay the amount of his personal bond by way of penalty. The trial court allowed his application by the impugned order and ordered him to be released on bail on his executing personal bond of Rs. 15,000 with two sureties each in the like amount. However, the trial court imposed a condition that the accused will deposit the amount of his personal bond by way of penalty, which had already been forfeited.

The learned Counsel for the Appellant contends that the accused was already on bail during the trial. As per term of the bond, he was required to attend the trial pending against him on each and every date fixed by the Court. Unfortunately, under unavoidable circumstances the accused could not attend the Court on two dates. The trial was fixed on 28th January, 2009 for the prosecution evidence. On that date the accused on account of illness could attend the Court. They had instructed their counsel to move an application for their exemption on that date. Their counsel accordingly had moved an application on that date, which was allowed by the trial court but on that date the Court recorded the examination-in-chief of P.W. 4 Dr. Shree Ram and adjourned the hearing for the next date, i.e., 29th January, 2009. The counsel for the accused could not inform the adjournment date to the accused. Therefore, they could not attend the Court on 29th January, 2009. The Court, therefore, ordered for issuance of non-bailable warrant against them and notices to the sureties. The accused for want of the notice of the date could not attend the Court on the next date i.e., 12th February, 2009. However, the accused Appellant appeared before the Court on 17th February, 2009. He moved an application for releasing him on bail, which was allowed by the Court by the impugned order. From a perusal of the earlier order dated 17th February, 2009, it appears that the accused Appellant appeared on 17th February, 2009 before the trial court and moved an application to recall the order of non-bailable warrant passed against him. The trial court rejected his application and the accused was taken into custody by the Court. He thereafter moved another application for releasing him on bail. The trial court found that the bail bond of the accused had already been forfeited by the Court, therefore, he was liable to pay the amount of personal bond by way of penalty. The trial court allowed his bail application by subsequent order on the same date and ordered him to be released on bail on executing personal bond of Rs. 15,000 and two sureties each in the like amount as well as on depositing the amount of penalty equal to the amount of his personal bond.

The learned Counsel for the Appellant contends that the trial court without affording any opportunity to accused to show cause as to why the amount of his personal bond be not realised, straightaway ordered the accused for depositing the amount of his personal bond, which is against the provisions u/s 446 of the Code. The provision u/s 446 of the Code requires that when the personal bond of the accused or the surety bonds of the sureties are forfeited, the accused or sureties will have to be given an opportunity to show cause as to why the amount of the sureties bond or personal bond, as the case may be, be not realised. If the accused or surety furnishes his reply in response to the show case notice and the Court is satisfied with his explanation, the Court will not order for realisation of the amount of the personal bond or surety bond from the accused or the surety. If his reply is found to be unsatisfactory only then the Court may order for realisation of the amount of personal bond or surety bond, as the case may be.

In this case, the trial court without affording any opportunity to the accused to explain as to why the amount of personal bond be not realised from him, straightaway ordered the accused to deposit the amount of his personal bond. The order directing the accused to deposit the amount of personal bond is, therefore, illegal and is liable to set aside.

The learned Counsel for the Appellant further contends that from a perusal of the copy of the order sheets, it appears that the accused was not a regular defaulter in attending his criminal case, pending against him, in the trial court. He remained absent on only on three dates, i.e., 28th January, 2009, 29th January, 2009 and 12th February, 2009. The learned Counsel for the accused had moved an application for exemption of the personal appearance of the accused on 28th January, 2009, which was allowed by the Court. The accused could not attend the Court on 29th Janaury, 2009 as their counsel could not inform about the subsequent dates to them. The trial court did not consider this aspect while directing the accused to deposit the amount of his personal bond. The impugned order is, therefore, improper too.

I agree with the submissions of the learned Counsel for the Appellants.

From a perusal of the copy of the order sheet of the trial court in S.T. No. 953 of 2003, State v. Sudhir and others S.T. No. 953 of 2003, it appears that the bail bond of the accused were forfeited by the Court on 12th February, 2009. The accused appeared before the trial court on 17th February, 2009 and was taken into custody by the Court. He, on the same date, moved an application for releasing him on bail. This application was allowed by the Court on the same date and he was ordered to be released on bail on the condition that he will deposit the amount of his personal bond.

Section 446 of the Code lays down the provisions as to when and how the amount of surety bond of the sureties or personal bond of the accused can be realised from them after their surety bond or personal bond, as the case may be, have been forfeited, which is being extracted below:

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) .....

(4) .....

(5) .....

From a perusal of the above provisions, it is clear that when the Court forfeits the bail bond of the accused, it will issue a notice to the surety to show cause as to why the amount of surety bond be not realised from him. If the surety furnishes reply in response to the show cause notice issued by the Court and Court finds it satisfactory, the Court may exempt him from payment of any penalty. If the reply is not found to be satisfactory, then the Court may order for realisation of the amount of surety bond. The same provision applies in the case of realisation of the amount of the personal bond from the accused.

In this case the accused appeared before the Court on 17th February, 2009. If the Court was of the opinion that the accused was bound to pay the amount of his personal bond, as it had already been forfeited, it was required to call upon the accused to explain as to why the amount of his personal bond be not realised from him before passing any order for realisation. If the accused did not furnish any reply to the show cause notice or his reply was not satisfactory then it could order for realisation of the amount of his personal bond. The Court could not straightaway order for realisation of the amount of personal bond from the accused without affording him an opportunity of hearing. Therefore, the impugned order of realisation of the amount of personal bond from the accused is in violation of the provisions u/s 446 of the Code, which is illegal and liable to set aside. Consequently the amount of personal bond of the accused cannot be realised.

In this case from a perusal of the copy of the order sheet, it appears that the accused had been defaulter on three dates, i.e., 28th January, 2009, 29th January, 2009 and 12th February, 2009. The trial court had exempted the personal appearance of the accused through their counsel on 28th January, 2009. The counsel for the Appellants could not inform the next date fixed by the Court to them, therefore, the accused could not appear on that date as well as on the next date. The accused was therefore, defaulter in attending the criminal case pending against him only on two dates, i.e., 29th January, 2009 and 12th February, 2009. The accused could not attend the Court on the aforesaid dates as his counsel could not inform him about these dates. The Court should have taken into consideration of this fact while passing the impugned order for realisation of the amount of personal bond from the accused. The impugned order is, therefore, too harsh to be maintained.

For the reasons, mentioned above, the impugned order is liable to be set aside and the appeal deserves to be allowed.

The appeal is allowed. The impugned order of trial court directing the accused to deposit the amount of his personal bond is set aside.