RAMESH LAL Vs. STATE OF J&K
HIGH COURT OF JAMMU AND KASHMIR
STATE OF JANDK
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(1.) THIS Criminal revision is directed against the order dated 13.09.1999 passed by the 1st Additional District & Sessions Judge, Jammu by virtue
of which he forfeited the surety furnished by the petitioner in case
State vs. Ashwani Kumar. The order impugned reads as under: -
"Respondent absent. A report has been received from Superintendent Jail that the accused has not as yet surrendered on 10.08.99. The respondent appeared and gave an undertaking that the accused had gone to Delhi for the treatment of his mother and both of them have not yet returned and he undertakes to produce the accused before the next date of hearing i.e. 07.09.99. The accused has not been produced by the surety and surety has also chosen to remain absent. This clearly shows that the surety has no cause to show as to why he could have failed to produce the accused, as such the order of forfeiture of the surety bond is made absolute and the forfeited amount is directed to be recovered by attachment of immovable property of the surety. Warrant of attachment of property of the surety be sent to the SSP for execution."
(2.) THE question arises whether failure to produce the accused as undertaken by the surety makes him liable to pay the amount of surety
without asking him to show cause why the amount of bond should not be
paid by him. Learned court appears to have passed this order hurriedly
without going through the mandate of Sub -Section (1) of Section 514,
relevant portion of which is extracted below: -
"514. Procedure on forfeiture of bond: - (1) Whenever it is proved to the satisfaction of the court by which a bond under this Code has been taken, or of the court of Magistrate of the first class;...... That such 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."
This opportunity is absolutely necessary when we read sub -section (2) of section 514 Cr.P.C. which reads as under: -
"(2) If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover the same by issuing a warrant for the attachment and sale of the moveable property belonging to such person or his estate if he be dead."
(3.) FAILURE of the petitioner (surety) to appear on the date fixed may justify an order of forfeiture of the surety, but this does not
absolve the court to ask him either to pay the amount of the bond or show
cause why it should not be paid by him. This question is however, no
longer res -Integra in view of the decision of this court in Mohd. Hussain
Banday vs. State of J&K (1972 KLJ 362) wherein it has been laid down
"Before any person bound by a bond is ordered to pay the penalty provided in the bond or action is taken for the recovery thereof under Section 514 Cr.P.C. the court is require to call upon such person to pay the penalty or to show cause why the penalty should not be paid. If any action is taken without such a notice, it is illegal and liable to be set aside. The form of the notice is given under Form XLV in Schedule 5 of the Code of Criminal procedure. The form requires the surety to pay the penalty or to show cause within a period specified in the notice why the payment should not be enforced. Notice issued in the instant case did not correspond to the prescribed form, in that no period was provided there in within which the surety should show cause why the penalty should not be paid. Instead it specified a particular date namely, 29.08.71 on which he was required to attend the court and file his objections. This may be construed as a substantial compliance with the requirement of Section 514 regarding notice but the fact remains that the date specified in the notice was a public holiday when the court would not sit and it could not be obviously possible for the surety to answer the notice. The notice therefore, amounted to a denial of opportunity to defend the matter and cannot be treated either reasonable or valid. It was no notice in the eye of law..."
No such notice has been given to the petitioner in the absence of which order of attachment is invalid.
A plain reading of Section 514 Cr.P.C. indicates that two steps must be taken by the court, (1) it must be proved to the satisfaction of
the court that bond has been forfeited whereupon the court has to record
grounds of such proof and (2) that the court on being satisfied may call
upon a person bound by such bond to pay the penalty thereof or show cause
why it should not be paid. Learned trial court by not having issued
notice to the petitioner to show cause as to why the penalty should not
be paid has clearly violated the provisions of Sec.514 which amounts to
an illegality. So the observation of the court that since the surely was
absent, therefore, he has no cause to show is against the mandate of
Section 514 Cr.P.C. because no notice in terms of Schedule 5 of Form LV
has been given to him. Their Lordships of the Supreme Court had the
occasion to consider the scope of Section 514 of Cr.P.C. 1898 (Central)
(Since repealed), in Ghulam Mehdi vs. State of Rajisthan (AIR 1960 SC
1185), Section 514 of the State Act being identical with the Central Act, interpretation placed shall be applicable. After referring to the Section
their Lordships held: -
"This provision shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause only then the court proceed to recover the money. In the present case the appellant was not called upon to show cause why the penalty should not be paid. Before a man can be penalised forms of law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore, be quashed."
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