Sham Sunder vs State Of Delhi
1990 Latest Caselaw 254 Del

ORDER

1. This petition has been brought against order dated September 8, 1981, of an Additional Sessions Judge, Delhi, by which he had dismissed the appeal filed against order of the Metropolitan Magistrate, Delhi, dated July 16, 1981 by which he had imposed a penalty of Rs. 3,000/- (three thousand) on the petitioner.

2. This petition had reached for hearing throughout the last month as well as this month but no one appeared on behalf of the petitioner. Today in the earlier part of the day Mr. P. P. Khurana, Advocate, had appeared in another matter and he was apprised of this case and he expressed his regrets for not appearing earlier and had undertook to appear today to argue this matter but it is really unfortunate that the counsel has not cared to appear although case has been awaited till after lunch. I have now gone through the record of the lower court and proceed to dictate the judgment.

3. One of the pleas raised in the petition was that no personal bond was executed by the accused and thus, the surety bond executed by the petitioner was not enforceable. The facts, in brief, are that in a case under S. 380 of the Penal Code as per FIR No. 30/77 of Police Station Karol Bagh, the petitioner had stood surety for the accused and had executed the surety bond undertaking that he would see that accused appeared on every date of hearing in the case in court and in case any default was made in that respect he would be bound to pay Rs. 3,000/- (three thousand) as penalty. It is true that accused-Smt. Kiran Bala @ Kuldeep Kaur, for whom the petitioner stood surety, had not signed the personal bond. So, the short legal question which arose for decision in the present petition was whether the surety bond was enforceable against the petitioner or not in absence of personal bond being signed by the accused. I find that in the order of admission dated Febuary 4, 1982, Charanjit Talwar, J. (as His Lordship then was) had recorded the order to the following effect :

"Present : Mr. V. K. Jain, counsel for the petitioner. In support of his contention that the surety bond could not have been forfeited as the accused had not filed or executed his personal bond, Mr. Jain cites . This proposition needs examination ..."

It is pertinent to mention that in the order of the Additional Sessions Judge, there is reference to the judgment of the Supreme Court on this very point.

4. In Ram Lal v. State of U.P. , a similar proposition of law came up for consideration before the Supreme Court and it was authoritatively held that the responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused. It was held that the forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. It is, hence, evident that the legal proposition lad down by the Allahabad High Court stood overruled by the Supreme Court and still on the basis of an overruled authority an admission of the petition has been obtained. Be that as it may, in view of the law laid down by the Supreme Court, I hold that there is no merit in this plea taken by the petitioner.

5. A perusal of the petition also shows that another point has been raised in challenging the impugned order that the Magistrate had not forfeited the surety bond before issuing notice to the surety under S. 446 of the Criminal P.C. I have gone through the file of the lower court and find that despite efforts made to get served the accused in the case, the accused could not be served. The notice to the surety was also given for producing the accused but even surety could not produce the accused and ultimately vide order dated September 12, 1980, the accused was declared proclaimed offender and on that day the surety was present in court and he was served with a notice under S. 446 of the Cri.P.C. to show cause as to why the amount of surety bond be not realised as fine. The surety was given sufficient time again for showing cause to the aforesaid notice and ultimately on failure of the surety to show any cause the learned Metropolitan Magistrate imposed the fine on the surety vide order dated July 16, 1981. The surety had been thereafter taking time from the Magistrate for paying the fine imposed but ultimately he prayed for paying the amount of fine by installments of Rs. 200/- per month and thereafter at Rs. 100/- per month. The surety failed to even pay the installments and then he challenged the order by filing an appeal which was dismissed by the learned Additional Sessions Judge. The relevant portion of S. 446 of the Criminal P.C. reads 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 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 ........."

6. There is no requirement of law that before forfeiting the surety bond any notice was liable to be given to the surety. In accordance with the terms of the surety bond, the same stood forfeited when the accused was declared a proclaimed offender and despite opportunities being given to the surety, the surety failed to produce the accused in court.

7. In Ghulam Mehdi, v. State of Rajasthan , it has been held that notice to show cause is liable to be issued to the surety only to explain as to why he should not be made to pay the amount of the bond already forfeited as penalty. In Fatehchand Wadhumal v. Emperor, AIR 1940 Sind 136 : (1940-41 Cri LJ 802), while interpreting the similar provisions of the old Criminal P.C. contained in S. 514, a Division Bench of the said High Court clearly held that a bond for appearance stands forfeited when accused does not appear and it does not require the court to issue notice to shows cause why the bond should not be forfeited. Similar view has been laid down by a single Judge of Orissa High Court in Ramananda Choudhury v. State of Orissa 1978 Cri LJ 597, I hold that it was not necessary for the magistrate to have passed any specific order in so many words that the bond stood forfeited before issuing notice to the surety under S. 446 of the Criminal P.C. to explain why the amount of bond which stood forfeited be not realised from him as fine. The surety bond of the petitioner stood forfeited as son as breach of the terms of the bond was committed on failure of the accused to appear in court on the dates fixed by the court and failure of the surety to produce the accused and accused having been declared proclaimed offender. The contents of the notice under S. 446 of the Criminal P.C. served on the surety clearly indicate that the bond of the surety stood forfeited and the same can be treated as specific order of the Magistrate forfeiting the surety bond as no notice was required to be given to the surety before forfeiting the surety bond. So, I find no merit in their petition.

8. I dismiss this petition. The Magistrate shall now take steps to effect recovery of the fine from the petitioner.

9. Petition dismissed.