P.D. RAJAN, J.

1. The question under challenge in this appeal is the legality of the order of forfeiting the bail bond without giving show cause notice to the 2nd surety is sustainable in Law?

The appellants were sureties of the accused in S.C. No. 1675 of 2001 of the Additional Sessions Court Neyyattinkara (Abkari Act Cases) for offence punishable under Section 55(a) of the Abkari Act. The accused in the above case was released on bail executing a bond for Rs. 10,000/- each. During trial accused absconded and notices were issued to the sureties. Notice against first surety was served and no notice to the second surety. The appellants neither appeared before court nor shown any reason for their non appearance. In the circumstance, bond amount was forfeited and directed to recover the penalty amount as fine under the code of criminal procedure.

The accused subsequently appeared before trial court and took bail on 7.12.2005 on executing fresh surety bond. The case against the accused (SC No. 1675 of 2001) was tried in the Additional Sessions Court and he was acquitted by that Court. It is true that the accused was released on bail by the trial court on executing a bond for Rs. 10,000/- each with two solvent sureties. The condition in the bond was that the person released on bail should appear before court as and when called for to answer the charge. The accused failed to appear before court as per the bond and M.C. No. 29 of 2005 was registered against the sureties and bond was forfeited on 22.09.2005 and directed to pay Rs. 10,000/- each.

2. Section 446 of the Code of Criminal Procedure read as follows:

"446 (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 the 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 has to exercise extreme caution while forfeiting surety bonds. When a bond under the Code for appearance or production of property is executed 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 before forfeiting the bond, 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. I have perused the lower court records, nothing has been stated in the order of the lower court with regard to the satisfaction of the court or the ground of proof while imposing penalty. Show cause notice was served on the 1st appellant. But the show cause notice to the 2nd appellant was not served. The mandatory requirement of the principle of natural justice is that a person against whom an adverse order is passed must be given an opportu