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Ranananda Choudhury and anr. Vs. the State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1978CriLJ597
AppellantRanananda Choudhury and anr.
RespondentThe State of Orissa
Cases ReferredJagannath Rout v. State of Orissa
Excerpt:
.....has failed to appear in court on the date fixed is sufficient proof of the fact that the condition of the bond has been forfeited and no further proof is necessary. in the instant case, it is for causing appearance of the accnsed by section 446, sub section (1). the learned sessions judge on the failure of the bailers-petitioners to cause production of the accused, forfeited the bail bond and in the misc. it is very much in conformity with the decision of this court as well as the provisions of section 446 cr......of trial on some grounds and the sureties also failed to produce him. consequently the sessions judge forfeited the bail bonds and issued notices to the petitioners as to why the penalty thereunder should not be realised from them. in fact, after forfeiture of the bonds a misc. case no, 18 of 77 was started wherein notices were given to the bailor petitioners. disposing of the misc. case, the sessions judge observed thus:the explanation of the sureties that the accused was ill or was incapable in attending the court cannot now be reagitated after the said adjournment petition was rejected on 28-2-77 and the case having been posted to 2-3-1977, when it was incumbent on the opposite parties to produce the accused. no evidence has also been adduced independently to show about any such.....
Judgment:
ORDER

K.B. Panda, J.

1. The two petitioners stood surety for accused Prahallad Choudhury in Sessions Trial No. 3/3A of 1975 and had executed bonds for production of the accused for Rs. 200/-. The Sessions Case was being tried by the Sessions Judge on Circuit at Angul. The accused did not appear for some days of trial on some grounds and the sureties also failed to produce him. Consequently the Sessions judge forfeited the bail bonds and issued notices to the petitioners as to why the penalty thereunder should not be realised from them. In fact, after forfeiture of the bonds a Misc. Case No, 18 of 77 was started wherein notices were given to the bailor petitioners. Disposing of the Misc. Case, the Sessions Judge observed thus:

The explanation of the sureties that the accused was ill or was incapable in attending the Court cannot now be reagitated after the said adjournment petition was rejected on 28-2-77 and the case having been posted to 2-3-1977, when it was Incumbent on the opposite parties to produce the accused. No evidence has also been adduced independently to show about any such impediment in the attendance of the accused. The record, rather discloses that this accused has been habituated in praying for adjournments as and when pleases on the date fixed to the utter harassment of the 15 D. Ws. including some Advocates, who appeared on the fixed date. Expecting that the accused could be produced the D. Ws, were kept on P- R. Bond and they were directed to attend Court from day to day. At last, on 14-3-1977 the accused surrendered by avoiding police arrest, which shows the hide and seek game played by the accused, to suit his purpose and the sureties do not seem to have been vigilant or active in caiising production of the accused. Hence the surety bonds for the opposite parties are forfeited.

4. After hearing and taking into consideration all the facts and circumstances including the huge expenditure incurred for the State, I hold that each of the surety bonds of the opposite parties to the extent of Rs. 200/ (Rupees two hundred only) be forfeited in the interest of justice and unless the said amount be paid in Court within a week, issue Distress Warrant for realisation of the same. Fix to 25-3-1977.

Sd. S. N. Misra

17-3-77

Sessions Judge.

2. It was contended by Mr. Tripathy, the learned Counsel for the petitioner that the Sessions Judge has acted contrary to the provisions of S- 446 Cr.PC corresponding to 514 Cr. P, C. (old) inasmuch as he has not issued any show-cause notice to the bailors as to why the bail bonds should not be forfeited. In support of his contention, he has cited AIR 1960 Orissa 108 : 1960 Cri LJ 842.

3. On behalf of the State reliance was placed on a -decision reported in (1974) 1 Gut WR 356 and 1974 Cut LR (Gri) 290 1975 Cri LJ 1684. The contention on behalf of the petitioners does not seem sound for the learned Sessions Judge has not outright forfeited the bail bonds and asked the petitioners to pay the penalty. He has in fact at {first forfeited bail bonds and asked the petitioners to show cause why the amounts should not be realised from them. Alter the petitioners have shown cause he has considered it in the Misc. Case and has passed the order quoted above. That apart, the citation relied on of behalf of the petitioners is case where the bailors had executed bonds for certain persons who were being prosecuted for keeping peace Under Section 107 Cr.PC but in the instant case, the bailors had executed bonds for causing production of the accused-There was no question in the instant case whether the conditions of the bail bonds had been violated inasmuch as failure on the part of the petitioners to produce the accused on the due date ipso facto proves that the condition of the bail bonds had been infringed. In fact, this position of' law has been viewed in the case of Harichandra Pradhan v. State, reported in (1974) 1 Gut W. Rule 356, wherein it lias been observed that in case of forfeiture of bond for appearance of accused, notice to surety before forfeiture is not necessary. In that case, Justice Misra observed thus -

X X XThe bond in this case was one for appearance of the accused persons before a court. As a fact the very trying Magistrate made an order for forfeiture of the bond and there could really be no better evidence than the order-sheet of the case where the direction of the magistrate for forfeiture has been recorded on the 9-0-72. There was no further proof necessary by hearing the parties in the circumstances.

5. The next question for consideration as as to whether the bailor should have had notice to show cause as to why the amount may not be recovered from him. As I find after the first order dated 9-6-72 the learned Magistrate has as a fact issued a notice, given an opportunity of being heard arid passed an order modifying the previous direction and confining the penalty to Rs. 300/- as against Rs. 900/- which was due pursuant to the first order. On looking into the facts of the case I find nothing wrong in law which would require interference from this Court to be set right. In the circumstances of the case I think it appropriate to discharge the reference.

4. The above case arose out of reference made by the Sessions Judge to the effect that the learned Magistrate has acted irregularly. According to the Sessions Judge, a notice to the surety was a must calling upon him to show cause and after hearing him alone, the order of forfeiture could have been passed. In that reference certain citations were referred to. But, ultimately, this Court held otherwise as quoted above. Subsequently, this case has been followed in the case of Jagannath Rout v. State of Orissa : 1975 Cri LJ 1684 (Orissa), decided by Hon'ble Justice Patra as A. C, J. In that case,' Section 514 was under consideration and if was held that the Magistrate can straightway issue a notice to the surety to show cause why the penalty mentioned in the bond should not be recovered from him and it is at that stage that the surety is entitled to put forth such plea as would be available to him.

X X X

There is thus a clear distinction between a bond for appearance on one side and a bond for keeping the peace or for being of good behaviour on the other. Doubtless in both the cases, it has to be proved to the satisfaction of the court that there has been a forfeiture of the condition of the bond and he has also to record the grounds of such proof. But so far as a bond for appearance is concerned, the very fact that the accused has failed to appear in Court on the date fixed is sufficient proof of the fact that the condition of the bond has been forfeited and no further proof is necessary.

The second stage relates to the realisation of the forfeited bond amount. At this stage, two alternatives are open to the executant of the bond. He may either pay the amount mentioned in the bond and if this is done, no further proceeding is necessary. He may in the alternative show cause why the amount mentioned in the bond should not be paid by him. If he shows such cause, it has to be duly considered by the Magistrate and necessary orders passed.

This case refers to AIR 1929 Pat 658 AIR 1962 Pat 431 : (1962) 2 Cri LJ 627 (1974) 1 Cut WR 358, Which have been relied on- The difference highlighted in the decisions of this Court has been fully reflected in the new provision Section 446 of the Code which runs thus:

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.

The provision of this new Code brings the difference, namely, where a bond under this Code is for appearance, or where, in respect of any other bond. In the instant case, it is for causing appearance of the accnsed by Section 446, Sub section (1). The learned Sessions Judge on the failure of the bailers-petitioners to cause production of the accused, forfeited the bail bond and in the Misc. case has asked them to show-cause as to why the penalty under the bond should not be realised. Finally, hearing the explanation offered by the bailor petitioners in the Misc. case, he has directed that the amount be realised under the Distress Warrant as quoted above. It is very much in conformity with the decision of this Court as well as the provisions of Section 446 Cr. P. C (New). There is no case of any prejudice to the bailors. The amount under the bond is only Rs. 200/- which they have been asked to pay. The amount also in the circumstances indicated by the learned Sessions Judge is not excessive, Accordingly, I would dismiss this revision and direct the petitioners to pay a fine of Rs. 200/- the amount as directed by the learned Sessions Judge.


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