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2004 (2) Crimes 115
Sikkim High Court
N.S. Singh, J.
Smt. Kanta Theeng—Petitioner/Surety
versus
The State of Sikkim—Respondent
Criminal Revision Petition No. 17 of 2003
Decided on 8-12-2003
Counsel for the parties:
For the Petitioner/Surety:Shri D.K. Singh, Advocate.
For the Respondent: Shri N.B. Khatiwada, P.P. assisted by Shri J.B. Pradhan, Addl. P.P.
Important Point
It is only when bond has been forfeited by a speaking reason order, that Court may call upon any person bound by such bond to pay penalty or to show cause why forfeited bond amount should not be paid.
Headnote:Criminal Procedure Code, 1973 — Section 446 — Order imposing penalty of Rs. 20,000/- upon petitioner surety — Petitioner surety had executed surety bond for Rs. 20,000/- of accused — On 19-3-2003 accused was absent before trial Court & CJM issued warrants of arrest against him & show cause to petitioner for her appearance on 20-3-2003 — Accused entered appearance on 19-3-2003 at 3:30 p.m. & was remanded to judicial custody — Sustainability of order of penalty — Bond executed in the case did not make clear in which Court or Magistrate accused was to appear — No order forfeiting bond was passed before calling surety to show cause for penalty — Impugned order could not be sustained.
Held: A bare perusal of the nature of the bonds executed by both the accused and surety, particularly, the bail bond/surety bond shows that there is no whisper in the said bonds to the effect that in which Court or Magistrate, the accused is to appear on everyday of hearing fixed in the case as well as that of undertaking made by the present petitioner to the effect that the accused Subhash Chandra Bhakta is to attend such Court? It may be mentioned that no fresh bond and the bail bond were executed either by the accused or by the present petitioner/surety in the Court of the Chief Judicial Magistrate (E & N), Gangtok in connection with the related case. In my considered view, both the learned Courts below had lost the sight of these irregularities and omissions appearing in the related bonds as discussed above while passing the impugned orders. On this ground alone, these impugned orders deserve to be quashed. (Para 7)
It is well settled that when the bond has been forfeited by a speaking and reason order of the Court concerned, the Court may call upon any person bound by such bond to pay the penalty thereof or to show cause why the forfeited bond amount should not be paid. In the instant case, the bond executed by the present petitioner/surety has not been forfeited except the order of show cause notice to her and the direction to deposit the for-feited bail bond amount of Rs. 20,000/-. In my considered view, the mandatory provision of Section 446 of the Cr.P.C. was overlooked by both the learned Courts below while passing the impugned orders. Apart from that it is noteworthy to opine that the said bond executed by the present petitioner, Smt. Kanta Theeng is not executable in the eye of law as highlighted above. It is on record that the accused Subhash Chandra Bhakta for whom the present petitioner executed the surety bond was acquitted under the related judgment dated 19th March 2003 passed by the learned Chief Judicial Magistrate, East & North at Gangtok in Criminal Case No. 63 of 2002. (Para 8)
According to me, in terms of the provisions of Section 446 of the Cr.P.C; before issuance of show cause notice to the person-surety, the Magistrate is to satisfy himself that there is a prima-facie material for such forfeiture of bond and, before forfeiture and issue of distress warrant, an opportunity should be given to the person-surety. In other words, two ingredients are to be fulfilled, the first one is the proof that the bond has been forfeited and record of the grounds of proof and, second step is calling upon the person-surety to pay penalty or to show cause as to why necessary orders should not be passed in terms of the related bond (s) and the reasons for that satisfaction must be recorded in writing. This is the real legal meaning and the procedure to be followed by a competent Court/Magistrate in terms of the provisions of law, laid down under Section 446 of the Cr.P.C. But, in the instant case, both the learned Courts below lost the sight of these legal procedures while passing the impugned orders. (Para 9)
Result : Revision allowed.
ORDER
N.S. Singh, J.— The order dated 29th May 2003 passed by the learned Sessions Judge, East & North at Gangtok in Criminal Appeal No. 14 of 2003 dismissing the appeal of the present petitioner, Smt. Kanta Theeng and affirming the orders dated 19th March 2003 and 20th March 2003 passed by the learned Chief Judicial Magistrate, East & North at Gangtok in Criminal Case No. 63 of 2002 is the subject matter under challenge in this revision petition.
2. The facts of the case, in a short compass, are as follows:
The present petitioner, Smt. Kanta Theeng stood surety for the accused Subhash Chandra Bhakta in connection with Singtam P.S. Case No. 5(3)2001 under Sections 170/384/34 of the Indian Penal Code in terms of the related order dated 23rd March 2001 passed by the learned Sessions Judge, East & North at Gangtok in Criminal Misc. Case No. 36 of 2001 and in that regard, the present petitioner, Smt. Kanta Theeng executed a surety bond for a sum of Rs. 20,000/- on 23rd March 2001 before the learned Sessions Judge, East & North at Gangtok. The case was tried by the learned Chief Judicial Magistrate, East & North at Gangtok and on 19th March, 2003, the accused Subhash Chandra Bhakta was absent in the Court without showing any cause for which the learned Chief Judicial Magistrate, East & North at Gangtok issued Non-bailable Warrant of Arrest against the accused and also show-cause notice to the present petitioner for her appearance on 20th March 2003. However, the accused Subhash Chandra Bhakta appeared before the learned Chief Judicial Magistrate, East & North at Gangtok on that day, i.e. 19th March 2003 at 3:30 p.m. and the accused was remanded to judicial custody till 20th March 2003 and further directed the sureties including the present petitioner, Smt. Kanta Theeng to file show-cause by 20th March 2003 and accordingly, the present petitioner submitted the show-cause by contending, inter alia, that the petitioner does not reside/live in close proximity of the accused Subhash Chandra Bhakta and was out of touch and apart from that the petitioner is in extreme financial difficulty as she is the only earning member of the family and, she be excused from being penalised. But the learned Chief Judicial Magistrate, East & North at Gangtok was of the view that the grounds assigned by the accused in his show-cause are not satisfactory and accordingly, the same stands rejected and directed the sureties including the present petitioner, Smt. Kanta Theeng to deposit the forfeited
bail bond amount of Rs. 20,000/- and accordingly, the petitioner deposited the forfeited bail bond amount on 21st March 2003. Being dissatisfied with the order dated 19th March 2003 and 20th March 2003 passed by the learned Chief Judicial Magistrate, East & North at Gangtok, the present petitioner preferred an appeal before the learned Sessions Judge, East & North at Gangtok under Criminal Appeal No. 14 of 2003 which was also rejected by the learned Sessions Judge, East & North at Gangtok. Being aggrieved by the impugned order dated 29th May 2003 passed by the learned Sessions Judge, East & North at Gangtok in connection with the criminal appeal, the present petitioner filed this revision petition.
3. The present petitioner, Smt. Kanta Theeng questioned the validity of the impugned order dated 29th May 2003 with the following grounds:-
“I. For that the Learned District and Sessions Judge erred in law in failing to appreciate that the order of forfeiture of the Surety Bond was per se illegal because the Accused had already appeared and surrendered and was already in Judicial Custody when the impugned Order of forfeiture of Surety Bond was passed.
II. For that the Learned Sessions Judge erred in law in failing to appreciate that the earlier Order dated 20-3-2003 was for appearance of the Surety only.
III. For that the Learned District and Sessions Judge may kindly have taken into judicial consideration that there was no delay caused to the Judicial proceeding
