Dhamtari, Chhattisgarh v. 1 - State Of Chhattisgarh Through Police Station Borai, District : Dhamtari, Chhattisgarh
Case Details
1 (CRA No. 794 of 2022) ADITI DIWAN KAIWART Digitally signed by ADITI DIWAN KAIWART Date: 2025.04.03 17:00:43 +0530 2025:CGHC:14865 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 794 of 2022 1 - Deepak Kumar S/o Jagdish Sahu Aged About 36 Years R/o Village- Sorid, Police Station- Dhamtari, District : Dhamtari, Chhattisgarh --- Petitioner(s) versus 1 - State Of Chhattisgarh Through Police Station Borai, District : Dhamtari, Chhattisgarh --- Respondent(s) (Cause-title taken from the Case Information System) ------------------------------------------------------------------------------------- For Appellant For State
Legal Reasoning
:- Ms. Aditi Singhvi, Advocate :- Mr. Rahul Tamaskar, Govt. Advocate ------------------------------------------------------------------------------------- (Single Bench) Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board Sanjay K. Agrawal, J. (27.03.2025) 1. In this criminal appeal preferred under Section 449 of the CrPC, the appellant is challenging order dated 19.04.2022 (Annexure A/1), by which the Sessions Judge, Dhamtari, C.G. has declined to accept the cause shown by the appellant herein for not producing the accused – Shailesh 2 (CRA No. 794 of 2022) Vijay Rathore before the trial Court on the date fixed for hearing and directed for the issuance of attachment warrant against the appellant. 2. The case of the prosecution, in a nutshell, is that one Shailesh Vijay Rathore S/o Vijay Rathore was apprehended in connection with Crime No.29/2018, Police Station – Borai, District – Dhamtari for offences under Section 20(b) (ii)(c) of the NDPS Act, 1985 and Section 420 of the IPC, 1860, for which Special Criminal Case (NDPS) No.89/18 (State v. Rakesh Surkar and Another) is pending before the learned trial Court. When the accused – Shailesh Vijay Rathore was released on bail vide order of this Court dated 04.04.2019 passed in MCRC No.1902/2019, the appellant herein stood as surety for an amount of Rs.1,00,000/-. However, the accused– Shailesh Vijay Rathore after being released on bail, did not comply with the conditions of the bail bond and failed to appear before the learned trial Court when the case was listed. Consequently, the bail bond of the accused was forfeited on 27.02.2020 and, on the same day, separate proceedings under Section 446 of the CrPC were initiated against the appellant herein and notice was issued to the appellant to show cause as to why not the amount of bail bond of Rs.1,00,000/- be recovered 3 (CRA No. 794 of 2022) from him and the next date of hearing was fixed on 03.04.2020. Thereafter, on account of COVID protocol, the case was adjourned till 07.09.2021, then again on 07.09.2021, show cause notice was issued to the appellant and the next date of hearing was fixed on 09.11.2021. But, even after the service of notice, the appellant did not appear before the learned trial Court on 09.11.2021, consequently, the attachment warrant was directed to be issued against the appellant for attachment of his movable properties. Thereafter, on 05.04.2022, the appellant appeared before the learned trial Court and submitted his reply stating that he had made every effort to find out the whereabouts of the absconding accused – Shailendra Vijay Rathore but could not ensure his presence before the learned trial Court and that, he is a poor person and is unable to pay the amount of Rs.1,00,000/- and, therefore, the attachment warrant issued against him may be withdrawn and he be freed from the bail bond. However, the learned trial Court did not accept the explanation of the appellant in reply to the show cause notice and vide impugned order dated 19.04.2022, proceeded to call for the report of the attachment warrant, against which this appeal has been preferred. 4 (CRA No. 794 of 2022) 3. Ms. Aditi Singhvi, learned counsel for the appellant would submit that though the show cause notice under Section 446(1) of the CrPC has been issued to the appellant to show cause as to why the penalty should not be paid, but no order of penalty has been passed and, straightway, the order of recovery has been passed under Section 446(2) of the CrPC, which is totally uncalled for and is liable to be set aside. 4. On the other hand, Mr. Rahul Tamaskar, learned State counsel would support the impugned order and submit that since the appellant could not produce the accused – Shailendra Vijay Rathore before the trial Court as per the surety bond, therefore, the trial Court has rightly directed for recovery of the said amount from the appellant. 5. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 6. At this stage, it would be profitable to notice relevant provisions of Section 446 of the CrPC, which states as under:- “446. Procedure when bond has been forfeited. —(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 5 (CRA No. 794 of 2022) 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. Explanation. - A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.” 7. A careful perusal of the above quoted provision would show that Section 446 of the CrPC deals in two stages, the first stage requires the grounds of satisfaction to be recorded by the Judge or Magistrate concerned for ordering such forfeiture and after recording such forfeiture, show cause 6 (CRA No. 794 of 2022) notice is to be issued. Order for recovery can be issued only on fulfilling the two stages contemplated by Section 446(1) of the CrPC. In this regard, their Lordships of the Supreme Court in the matter of Gulam Mehdi v. State of Rajasthan1 while dealing with the pari materia provisions under Section 514 of the old CrPC, 1898 have held 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 can proceed to recover the money. 8. In the instant case, though the show cause notice was issued to the appellant on 07.09.2021 and the next date of hearing was fixed on 09.11.2021, but even after the service of notice, the appellant did not appear before the learned trial Court on 09.11.2021 and vide impugned order dated 09.11.2021, the attachment warrant was issued against the appellant for attachment of his movable properties. Whereas, since the appellant did not appear, the course open to the learned trial Court was to pass an order of penalty against the appellant, if any, which the learned trial Court failed to do so and, straightway, directed for recovery of the said amount, which is in the teeth of the 1 AIR 1960 SC 1185 7 (CRA No. 794 of 2022) provisions contained in Section 446(1) of the CrPC, as though the show cause notice has been issued to the appellant, but no order of penalty has been passed and, straightway, order of attachment has been passed by the impugned order, which is per se illegal. 9. In that view of the matter, impugned orders dated 09.11.2021 & 19.04.2022 are hereby set aside. However, the trial Court is at liberty to proceed in accordance with law. 10. Accordingly, this criminal appeal is allowed to the extent indicated herein-above. @d!t! Sd/- (Sanjay K. Agrawal) Judge