Surjit Singh vs State of Punjab

B.S. Yadav, J.

The facts leading to revision petition are that the present petitioner Surjit Singh had stood surety in the sum of Rs. 4,000/ for one Ram Lubhaya, who had been arrested in a case under the Opium Act. On the acceptance of the bail bonds, the accused was released on bail. Ram Lubhaya did not put in appearance in the court on 16th August, 1979 and the learned trial Court ordered that he be summoned through nonbailable warrants for 30th August, 1979. The bail bond was also concelled. On 30th August, 1979 the accused was again absent. The warrants had not been issued by the Court. The Court ordered issuance of fresh warrants against the accused and notice to the petitioner for 21st September, 1979. For 21st September, 1979 neither the accused nor the surety was served. The Court ordered the issuance of fresh nonbailable warrants against the accused. Warrant of attachment of the land of the petitioner was also issued. For a couple of hearing neither the warrant of arrest was executed against the accused nor the attachment of the land of the petitioner was effected. On 14th August, 1980 the Court ordered that the accused be summoned through proclamation under section 82 and 83 of the Code of Criminal Procedure (for short the Code). Notice was also ordered to be issued to the petitioner. The case was adjourned to 29th August, 1980. Service of the petitioner was effected for that date. On that date the petitioner did not appear. The Court passed an order imposing penalty of Rs. 4,000/ upon the petitioner. Relevant portion of that order reads as follows :

"A large number of notices were sent to the surety for his service but he was not served. Warrants of attachments of the property of the surety were also issued to compel him to appear in this Court but the warrants of attachment sent to the Revenue authorities were also received back unexecuted with some frivolous explanations. A notice had also to be given to the learned Controller. The respondent was served for today through Kirpal Singh S.I./S.H.O., P.S. Sadar, Jullundur. The respondent has not appeared despite service. Therefore the inference arises that he has nothing to say in this matter. Accordingly a penalty of Rs. 4,000/ is imposed upon the respondent/surety on account of surety amount of Rs. 4,000/. Warrants of recovery be issued for 10.9.1980."

Feeling aggrieved against the above order the petitioner filed an appeal which was heard by learned Additional Sessions Judge, Jalandhar. He did not find any merit in the appeal and dismissed the same. Still feeling not satisfied, the petitioner has invoked the revisional jurisdiction of this Court.

The learned counsel for the petitioner vehemently argued that in the present case the learned trial Court has violated the provisions of section 446 of the Code. I am of the opinion that the above argument has force. The relevant provisions of that section read as follows :

"*446. 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 a that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited.

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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.

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(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 :

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The learned counsel for the petitioner argued that after the court is satisfied that the bond has been forfeited, the court has to call upon the person bound by the penalty thereof or to show cause why it should not be paid but in the present case no such notice was issued to the petitioner to pay the amount of the penalty or to show cause why it should not be so paid. The learned counsel for the petitioner drew my attention to the notice which was served upon the petitioner for 29th August, 1980 and pointed out that the contents of the notice are not in accordance with the law. That notice issued to the petitioner is in Gurmukhi and when translated into English it reads somewhat so follows :

"In the above titled case you had stood surety for the above named accused but he has absented himself. You had stood surety but you have not deposited the bail amount. Therefore, through the notice you are informed that you should appear in Court on 29th August, 1980 and show cause why further proceedings should not be taken against you."

The above notice is not as contemplated by the provisions of section 446 of the Code. No notice was issued to the petitioner to pay the amount of the penalty or to show cause why it should not be paid. He was merely asked to show cause why further proceedings be not taken against him as he had not paid the penalty amount. Before a surety can be made liable to pay the amount of the forfeited bond, it is necessary to give notice to him why the amount of penalty should not be paid by him or to show cause why it should not be so paid and if he fails to show sufficient cause only then the court can proceed to recover the money. Admittedly, such notice was not given to the petitioner. Hence the proceedings are vitiated.

The learned counsel for the petitioner further argued that in the present case there is no specific order about the forfeiture of the bond. The court should have passed an order forfeiting the bond. However, even if no specific order is passed in this respect, the bond will be deemed to have been automatically forfeited when the conditions are not fulfilled. In the present case the accused absented himself and the learned trial Court cancelled the bail bound. Therefore, the above argument of the learned counsel for the petitioner has no force.

The learned Deputy Advocate General for the State reclined against the provisions of section 465 of the Code for supporting the impugned order. I am of the opinion that the said section has no application to the present case. As noticed earlier, the required notice was not given to the petitioner and therefore, all, subsequent proceedings are vitiated. In my opinion section 465 of the Code will not cure the illegality in the procedure committed by a Court.

For the foregoing reasons I accept the present revision petition and set aside the impugned order so far as it concerns the petitioner. The case is sent back to the trial Court for taking proceedings against the petitioner in accordance with law. The parties are directed to appear in that Court on 10th May, 1984.