M.M.PUNCHHI , J. - (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. In the index of the lower Court file an entry borrowedly has been made of an order dated 25th February, 1982 in a case captioned as Sessions case No. 90 of 1981 State v. Dial Singh etc decided on 17th September. 1982. The order, as copied on the reverse thereon, reads as under: 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." it is plain there from that the bond had been forfeited as also the penalty assessed on one and the same day i e. on 25th February, 1982. A certified copy of the judgment in the aforesaid sessions case State v. Dial Singh etc. has been produced before me by the Learned Counsel, in which the learned trial Judge while conceding observed that it was a case of no evidence against the accused, nor the evidence led by the prosecution incriminated any of the accused with the offence with which they stood charged. The trial Court went on to observe that the complainant and the injured eye -witnesses had stated that they did not know the accused persons nor any one of them had caused any injury to any of the PWs and further stated that there was a dust storm and there were about 250 persons and the persons who came on different trucks had quarreled with their labour union at Tangra Railway Station Thus the PWs had neither named nor identified any of the persons sitting as accused in the Court as their assailants. In this situation, had Mohinder Singh accused, been before the Court along with Dial Singh etc. he too would, have perhaps earned acquittal. Understandably in the said judgment his name does not appear, though admittedly he was involved in this case.;