IMPORTANT POINT
The court established that due process requires notice to be given to sureties before imposing penalties for bond forfeiture, ensuring adherence to natural justice.

JUDGMENT :

SOPHY THOMAS, J.

1. This appeal is filed by the sureties of the accused in S.C. No. 122 of 2003 on the file of Additional Sessions Judge Fast Track Court-II, Alappuzha, challenging Annexure-A order dated 12.01.2005 by which they were ordered to pay penalty of Rs.20,000/- each.

2. The accused in S.C. No. 122 of 2003 absconded, and notice was ordered to the appellants who were his sureties. In spite of service of notice, they neither appeared nor showed any reason for not forfeiting the bond amount. Finding that the appellants violated the conditions in the bail bond, the trial court ordered them to pay penalty of Rs.20,000/- each, against which they have preferred this appeal.

3. Heard learned counsel for the appellants and learned counsel for the respondent-State.

4. Learned counsel for the appellants would submit that, the accused for whom they stood as sureties was subsequently arrested, and produced before court, and after trial, he was acquitted also. When the accused was arrested, and produced before the trial court, his case number was changed and so the appellants could not follow up the proceedings so as to make their appearance before court. But, they are not disputing the fact that they were the sureties of the accused in S.C. No. 122 of 2003, and they failed to produce the accused before court in spite of notice.

5. The impugned order, Annexure-A, shows that since the accused was absconding, notice was issued to the sureties, but they did not appear and so the court straight away forfeited the bail bond and imposed the penalty on them.

6. The importance of notice was considered by the Apex Court in the decision Ghulam Mehdi v. State of Rajasthan, 1960 KHC 740 : AIR 1960 SC 1185. The Hon’ble Apex Court held that, before a surety becomes liable to pay the amount of the bond forfeited, it is necessary to give notice, and if surety fails to show sufficient cause, only then the court should proceed to recover the money. When no opportunity is being given to show cause why he should not be made to pay, the proceedings could not be said to be in accordance with law. The expression “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” employed under Section 446(1) Cr.P.C. would reveal the aforesaid position clear.

7. While considering necessity of notice to the sureties before imposing penalty, this Court, in Thundichi and Another v. State of Kerala, 2009 KHC 1046, held that, after forfeiting the bond and before imposition of penalty, notice has to be issued to the sureties. In that case, notice was issued to the sureties to show cause against imposition of penalty, but it was before forfeiture of the bail bond. The court held that even if notice was issued to show cause as to why the surety bond shall not be forfeited, then also before imposing the penalty, the sureties had to be given notice, after forfeiture of the bond. Paragraph 3 of that judgment reads thus:

“3. It is argued by learned counsel that going through the order passed by the learned Assistant Sessions Judge, notice was issued to the petitioners only before forfeiture of the bond and after such forfeiture, no notice as contemplated under S.446 of the Code was issued. That deprived petitioners of an opportunity to show cause against imposition of penalty. Learned counsel has placed reliance on the decision of the Supreme Court in Ghulam Mehdi v. State of Rajasthan, 1960 KHC 740 : AIR 1960 SC 1185 : 1960 Cri. L.J. 1527. There, referring to the provisions of S.514 of the old Code it was held that before imposition of penalty notice has to be issued to the sureties. In this case though it is seen from the copy of notice produced by petitioners in this revision that petitioners were called upon to show cause against imposition of penalty but that was before forfeiture of the bail bond. Petitioners are correct in contending that they were not given