Sureties must receive notice after bond forfeiture before any penalty can be imposed, ensuring adherence to procedural fairness.

JUDGMENT

This appeal has been filed challenging the order in M.C.No.8/2006 in S.C.No.841/2000 through which a penalty of Rs.10,000/- each was imposed on the appellants, who were sureties to the 2nd accused in S.C.No.841/2000. It is submitted that the appellants had taken all earnest efforts to ensure the presence of the 2nd accused before the Court and that even before the impugned order was passed, the 2nd accused for whom the appellants were sureties, was arrested, produced before the Court and remanded to custody. It is also submitted that the procedure contemplated by Section 446 of the Code of Criminal Procedure had not been complied with in as much as no show cause notice was issued to the appellants before imposing penalty. It is also submitted that the 2nd accused has subsequently been acquitted by the Court in S.C.No.841/2000. This Court inThundichi v. State of Kerala; 2009(4)

KLT 148 held as follows:-

“3. It is argued by the 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 ( AIR 1960 SC 1185 ). 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 notice after forfeiture of the bond. It is submitted by learned counsel that subsequent to the impugned orders accused was tried in the case and he was acquitted.

That, however is a matter to be taken into account by the learned Assistant Sessions Judge after issuing notice to the petitioners as contemplated in S.446(1) of the Code and while deciding whether penalty should be imposed on petitioners since arrest/production/appearance of the accused after forfeiture of the bond cannot by itself exonerate the sureties from liability based on the forfeiture of the bond. In the light of the above facts and circumstances, the order passed by the learned Assistant Sessions Judge and consequently the judgment of learned Sessions Judge cannot stand and the same are liable to be set aside.”

Taking note of the submissions of the learned counsel for the appellants and essentially taking note of the submission that the procedure under Section 446 (1) of the Code of Criminal Procedure was not followed before imposing penalty through the impugned order dated 23.3.2006, this appeal will stand allowed and the order dated 23.3.2006 in M.C.No.8/2006 in S.C.No.841/2000 will stand set aside.