2010 Supreme(Mad) 287

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. NAGAMUTHU
Prapbakaran
Versus
The State rep. by Inspector of Police, Kavindapadi Police Station
Crl.O.P.No.1439 of 2010 & M.P. No. 1 of 2010
Decided on: 25-01-2010

Before recording such satisfaction that breach has been committed, the learned Magistrate is required to issue notice and after affording an opportunity to offer any explanation, if the Magistrate is not satisfied with the said explanation offered by the accused, then, he has to record such satisfaction that the terms of the bond have been breached which alone signifies the forfeiture of the bond.

Headnote:

Criminal Procedure Code – Section 70, 482, 437(5) and 446 - Indian Penal Code –Section 379 Petition filed challenging the order passed by judicial magistrate - Petitioner did not appear before the Magistrate. Hence cancelled the bail on the ground that the condition was not complied with Simultaneously, issued a non-bailable warrant. Petitioner submission is that the leaned Magistrate was not right in cancelling the bail without notice to the petitioner and without affording an opportunity to him. On these grounds, Petitioner would pray for setting aside the impugned order of the learned Magistrate.- This court held that if bonds stand cancelled in terms of Section 446-A of the Criminal Procedure Code, accused can be released only on execution of a fresh bond. Thus, it emerges tacitly clear that prior to the introduction of Section 446-A, the bail bond shall stand cancelled only when the bail is cancelled either under Section 437 or 439 of the Criminal Procedure Code, whereas now, such cancellation takes place automatically by operation of Section 446-A of the Criminal Procedure Code without there being an order of cancellation of bail. - order of the learned Judicial Magistrate is set aside - Criminal Original Petition is allowed (Para 16)

Fact of the Case:

The petitioner is the sole accused in Crime No.321 of 2009 on the file of the respondent-Police for an offence under Section 379 I.P.C. He was arrested and later on released on bail on the orders of the learned Judicial Magistrate No.II, Gobichettipalayam on certain conditions and on execution of a bond with two sureties. The petitioner complied with the conditions and came out of prison. As per the condition imposed by the learned Judicial Magistrate on 27.10.2009, the petitioner is required to appear before the learned Magistrate everyday at 10.00 a.m, until further orders. But, on 30.10.2009, the petitioner did not appear before the Magistrate. Therefore, the learned Magistrate cancelled the bail on the ground that the condition was not complied with. Simultaneously, the learned Magistrate issued a non-bailable warrant for the arrest and production of the accused before the Court. Subsequently, it appears that the petitioner approached the learned Principal Sessions Judge, Erode under Section 438 Cr.P.C seeking anticipatory bail apprehending arrest in execution of the said non bailable warrant. The said petition was rightly returned by the learned Sessions Judge by order dated 27.01.2009. Thereafter, he has approached this Court with this petition, challenging the order of the learned Magistrate cancelling the bail.

Finding of the Court:

In my considered opinion too, the learned Magistrate was not right in cancelling the bail order without notice to the petitioner. Of course, under Section 437 (5) of Cr.P.C., the learned Magistrate has got power to cancell the bail. But it is settled law that before passing such an order, the learned Magistrate is required to issue notice to the accused, so as to afford him an opportunity to explain as to why the bail should not be cancelled. Such course has not been adopted by the learned Magistrate in this case. Therefore, it is on this ground alone the impugned order to the extent of cancellation of the bail, deserves to be set aside.

Issues: None

Ratio Decidendi: In my considered opinion, mere failure to appear before the Court, in the absence of any willfulness on the part of the accused, would not amount to "a breach" in terms of Section 446 of the Code of Criminal Procedure. Manifestly, there has to be an animus on the part of the accused not to abide by or comply with, the terms and conditions of the bond. Such animus alone makes the failure of the accused to appear, a breach in terms of Section 446 of the Code. Such animus on the part of the accused could be ascertained only after affording sufficient opportunity to the accused. For example, while on his way to the Court, if an accused had met with an accident and he was taken to a hospital, such failure of the accused to appear before the Court on that particular date of hearing can never be treated as breach in terms of Section 446 of the Code. On receipt of notice, if the accused satisfies the Court that he was prevented from appearing before the Court due to sufficient reason, like the one, illustrated above, the Court may not record such satisfaction holding that the accused had committed a breach of bond. The language "proved to the satisfaction" needs to be underscored, which clears doubt, if any, that the term "proof" held within it "disproof" by the accused / surety also. Such proof or disproof of animus can be arrived at only after sufficient opportunity to the accused / surety. Such opportunity shall satisfy the principles of natural justice "Audi Alteram Partem" which is not alien to criminal law as it has the sanction of the Constitution of India. Therefore, before recording such satisfaction, notice to the accused is necessary and further enquiry should follow. On such enquiry only, the learned Magistrate has to get satisfied himself on proof as to whether there was any breach of the terms of the bond; and after so satisfied that breach has taken place, then only such recording of the satisfaction of the Court will indicate the breach of the terms of the bond.

Final Decision: In the result, the Criminal Original Petition is allowed; the order of the learned Judicial Magistrate No.II, Gobichettipalayam dated 30.10.2009 made in C.M.P.No.1651 of 2009 is set aside; however, the latter part of the order issuing non-bailable warrant is confirmed, giving liberty to the petitioner to work out his remedy under Section 70(2) of Code of Criminal Procedure before the Magistrate.