MUKHTIAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) APPELLANT Mukhtiar Singh, on 26th July, 1980, stood surety for the appearance of one Mohinder Singh in a sessions trial, under Sections 307/148/149 etc. Indian Penal Code, pertaining to F.I. R No. 92 of 1980, Police Station GRP. Amritsar. During the trial of the sessions case, Mohinder Singh accused absented himself from appearance in the court on 9th September, 1981 Thereupon non -bailable warrants were issued against him time and again Notice to the surety (the Appellant) was also issued under Section 446 of the Code of Criminal Procedure and the same was served on him. He put in his appearance on 3rd December, 1981.

(2.) AS is plain from the file of the lower Court, a notice was read out to the surety on 3rd December, 1981 which when translated would read as under: That on 26th July, 1980 you had stood surety on a bond of Rs. 10,000/ - for the appearance of Mohinder Singh son of Joginder Singh, resident of Wadali, but accused Mohinder Singh has new absented himself from the court that why the said sum of Rs 10,000/ - as bonded be not got paid from you. The Appellant was put to specific questioning whether he had heard the terms of the notice to which he replied in the affirmative When asked as to whether he has anything else to say, he replied that he did not know as to where had the accused gone Later he made a prayer to the Court for giving him time to produce the accused. He repeated his prayer a couple of times and finally said that it was not possible for him to cause appearance of the accused The learned trial Judge then passed the order under appeal by observing as follows: In view of the above circumstances, the surety bond stands forfeited to the State and the Respondent is directed to pay the penalty of Rs. 10.000/ - as under taken by him under the bond dated 26th July, 1980.

(3.) MISS Surjit Kaur, Learned Counsel for the Appellant, relying upon the language of Section 446(1), Code of Criminal Procedure which is in the following terms: 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 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. As also on the strength of Gulam Mehdi v. State of Rajasthan : AIR 1960 S.C. 1185, contended that before a surety can be made liable to pay the amount forfeited, it is necessary to forfeit the bond and thereafter to give notice to him as to why the amount as penalty should not be got paid from him, and if he fails to show sufficient cause only then the Court can proceed to recover the money. She has further contended that in the instant case no opportunity as conceived of in Section 446 of the Code of Criminal Procedure has been given to the Appellant to show cause and thus the proceedings cannot be said to be in accordance with law and deserve to be quashed.