IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.01.2010 CORAM THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.O.P.No.1439 of 2010 and M.P.No. 1 of 2010 Prapbakaran ... Petitioner Vs. The State rep. by Inspector of Police, Kavindapadi Police Station Erode District. ... Respondent (Crime No.321 of 2009) Petition filed under Section 482 of the Code of Criminal Procedure, praying to call for the entire records relating to C.M.P.No.1651 of 2009 on the file of the Judicial Magistrate No.II, Gopichettipalayam and set aside the order passed therein dated 30.10.2009. For Petitioner: Mr.N.Manokaran For Respondent: Mr. V.R.Balasubramaniam, Addl.Public Prosecutor ORDER The petitioner is the sole accused in Crime No.321 of 2009 on the file of the respondent-Police for an offence under Section 379 I.P.C. He was arrested and later on released on bail on the orders of the learned Judicial Magistrate No.II, Gobichettipalayam on certain conditions and on execution of a bond with two sureties. The petitioner complied with the conditions and came out of prison. As per the condition imposed by the learned Judicial Magistrate on 27.10.2009, the petitioner is required to appear before the learned Magistrate everyday at 10.00 a.m, until further orders. But, on 30.10.2009, the petitioner did not appear before the Magistrate. Therefore, the learned Magistrate cancelled the bail on the ground that the condition was not complied with. Simultaneously, the learned Magistrate issued a non-bailable warrant for the arrest and https://hcservices.ecourts.gov.in/hcservices/ production of the accused before the Court. Subsequently, it appears that the petitioner approached the learned Principal Sessions Judge, Erode under Section 438 Cr.P.C seeking anticipatory bail apprehending arrest in execution of the said non bailable warrant. The said petition was rightly returned by the learned Sessions Judge by order dated 27.01.2009. Thereafter, he has approached this Court with this petition, challenging the order of the learned Magistrate cancelling the bail. 2. It is submitted by the learned counsel for the petitioner that the petitioner was hospitalised on 29.10.2009 as he had suddenly fallen ill and that was the reason why he could not appear before the Court. The learned counsel would further submit that the leaned Magistrate was not right in cancelling the bail without notice to the petitioner and without affording an opportunity to him. On these grounds, he would pray for setting aside the impugned order of the learned Magistrate. 3. The learned Additional Public Prosecutor Mr.N.R.Ilango would fairly submit that the learned Magistrate was not right in cancelling the bail without affording an opportunity to the petitioner. 4. I have considered the rival submissions. In my considered opinion too, the learned Magistrate was not right in cancelling the bail order without notice to the petitioner. Of course, under Section 437 (5) of Cr.P.C., the learned Magistrate has got power to cancell the bail. But it is settled law that before passing such an order, the learned Magistrate is required to issue notice to the accused, so as to afford him an opportunity to explain as to why the bail should not be cancelled. Such course has not been adopted by the learned Magistrate in this case. Therefore, it is on this ground alone the impugned order to the extent of cancellation of the bail, deserves to be set aside. 5. In respect of the second part of the impugned order, whereunder, non-bailable warrant has been issued by the learned Magistrate, whether it requires any interference at the hands of this Court, is the next question to be considered. At this juncture, it should be noticed that forfeiture of bond as indicated in Section 446 of the Criminal Procedure Code is by the act of the accused, who has committed breach of the condition imposed. Such forfeiture emanates only from the conduct of the accused and there is no need or occasion for the Court to pass any order to forfeit such bond. Section 446 of the Code which deals with forfeiture of bonds reads 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 https://hcservices.ecourts.gov.in/hcservices/ 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, (Emphasis supplied) 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, (Emphasis supplied) 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." (3) The court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. https://hcservices.ecourts.gov.in/hcservices/ (5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the court by which he was convicted of such offence may be used as evidence in proceedings under against his surety or sureties, and, if such certified copy is so used, the court shall presume that such offence was committed by him unless the contrary is proved. 6. The language "has been forfeited" employed in more than one place in Section 446 of the Criminal Procedure Code would clearly reflect the same. Under this provision, the Court is required only to record its satisfaction on proof that such forfeiture has taken place and then to call upon the person to pay penalty thereto in terms of the bond. If sufficient cause is not shown, the Court shall impose penalty. 7. As I have already indicated supra, the crucial moment at which the bond shall stand automatically cancelled is, as soon as the learned Magistrate records his satisfaction that the bond has already been forfeited on the act of the accused. In this regard few judgments from various High Courts need to be referred to. 8. In Jagannath Rout v. State of Orissa, 1975 CRI. L.J. 1684, the Orissa High Court has considered the scope of old section 514 of the Code and has held as follows:- "There is thus a clear distinction between a bond for appearance on one side and a bond for keeping the peace or for being of good behaviour on the other. Doubtless in both the cases, it has to be proved to the satisfaction of the Court that there has been a forfeiture of the condition of the bond and the Court has also to record the grounds of such proof. But, so far as a bond for appearance is concerned, the very fact that the accused has failed to appear in Court on the date fixed is sufficient proof of the fact that the condition of the bond has been forfeited and no further enquiry or proof is either necessary." "The Magistrate can straightway issue a notice to the surety to show cause why the penalty mentioned in the bond should not be recovered from him and it is at that stage that the surety is entitled to putforth such plea as would be available to him." https://hcservices.ecourts.gov.in/hcservices/ 9. The Delhi High Court has also taken, more or less, the similar view, as the one taken by the Orissa High Court, in Sham Sunder v. State of Delhi, 1990 CRI. L.J. 2370. In the said judgement, the Delhi High Court in para 7 has held as follows:- "In Ghulam Mehdi v. State of Rajasthan, AIR 1960 SC 1185: (1960 Cri.L.J. 1527), 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.L.J.) 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 show 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 realized from him as fine. The surety bond of the petitioner stood forfeited as soon 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." (Emphasis supplied) 10. I regret, I am unable to persuade myself to agree with the said view taken by the Orissa High Court as well as Delhi High Court wherein the learned Judges have taken the view that where there is failure of the accused to appear before the Court, no further enquiry or proof is necessary or contemplated for recording satisfaction. In my considered opinion, mere failure to appear before the Court, in the absence of any willfulness on the part of the accused, would not amount to "a breach" in terms of Section 446 https://hcservices.ecourts.gov.in/hcservices/ of the Code of Criminal Procedure. Manifestly, there has to be an animus on the part of the accused not to abide by or comply with, the terms and conditions of the bond. Such animus alone makes the failure of the accused to appear, a breach in terms of Section 446 of the Code. Such animus on the part of the accused could be ascertained only after affording sufficient opportunity to the accused. For example, while on his way to the Court, if an accused had met with an accident and he was taken to a hospital, such failure of the accused to appear before the Court on that particular date of hearing can never be treated as breach in terms of Section 446 of the Code. On receipt of notice, if the accused satisfies the Court that he was prevented from appearing before the Court due to sufficient reason, like the one, illustrated above, the Court may not record such satisfaction holding that the accused had committed a breach of bond. The language "proved to the satisfaction" needs to be underscored, which clears doubt, if any, that the term "proof" held within it "disproof" by the accused / surety also. Such proof or disproof of animus can be arrived at only after sufficient opportunity to the accused / surety. Such opportunity shall satisfy the principles of natural justice "Audi Alteram Partem" which is not alien to criminal law as it has the sanction of the Constitution of India. Therefore, before recording such satisfaction, notice to the accused is necessary and further enquiry should follow. On such enquiry only, the learned Magistrate has to get satisfied himself on proof as to whether there was any breach of the terms of the bond; and after so satisfied that breach has taken place, then only such recording of the satisfaction of the Court will indicate the breach of the terms of the bond. 11. The above view of mine is fortified by judgment of Himachal Pradesh High Court in Narata Ram v. State of Himachal Pradesh, 1994 Cri. L.J. 491, wherein, the Himachal Pradesh High Court in para 10 has held as follows:- " The scheme of Section 446 of the Code of Criminal Procedure envisages two stages, as indicated above. No doubt, accused did not appear nor they could be produced by the petitioner and non-bailable warrants had been issued for their appearance on 1st July, 1992, the Court below had also afforded an opportunity to the petitioner to produce the accused on 1st July, 1992. Had this last opportunity to produce the accused been afforded, the portion of the order dated 25th May, 1992, directing the forfeiture of the amount under the bonds was legal and valid and for the reasons stated above, the Court could be deemed to have satisfied regarding the existence of reasonable grounds for directing the forfeiture of the bond. Here, a composite order was https://hcservices.ecourts.gov.in/hcservices/ passed. The petitioner could have produced the accused on 1st July, 1992 and had he complied with the order to this effect, the circumstances would not have attracted the issuance of order forfeiting the bonds. Thus, in such circumstances, the Court cannot be deemed to have satisfied itself as to the existence of grounds for directing the issuance of forfeiture of the bonds on 25th May, 1992. In other words, the trial Court committed an illegality by exercising jurisdiction improperly, which had also not been noticed by the appellate Court." 12. In para 13 of the said judgment, the Himachal Pradesh High Court has gone to the extent of saying that issuance of notice to the individual to afford an opportunity is part of principles of natural justice which states that no adverse order could be passed to affect any party without affording sufficient opportunity of being heard. 13. In view of the said position, I am of the firm view that before recording such satisfaction that breach has been committed, the learned Magistrate is required to issue notice and after affording an opportunity to offer any explanation, if the Magistrate is not satisfied with the said explanation offered by the accused, then, he has to record such satisfaction that the terms of the bond have been breached which alone signifies the forfeiture of the bond. 14. A close scrutiny of Section 446 of the Criminal Procedure Code in the absence of Section 446-A, would go to show that despite the breach of the bond by the accused, the bond does not stand cancelled and such cancellation shall follow only when the bail order itself is cancelled. Having noticed this, the Legislature thought it fit to introduce Section 446-A of the Criminal Procedure Code, which reads as follows:- 446-A. Cancellation of bond and bail bond:- Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition- (a) The bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and (b) Thereafter no such person shall be released only on his own bond in that case, if the Police Officer or https://hcservices.ecourts.gov.in/hcservices/ the court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition: Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the court, as the case may be thinks sufficient. 15. Under the said provision, now it has been declared that if once the bond is forfeited for breach of a condition, the said bond shall stand automatically cancelled. Such cancellation takes place as soon as the Magistrate after affording opportunity to the accused and the sureties, records his satisfaction that the bond has been forfeited and that the explanation of the accused has not been accepted. Thus, no more order is required to be passed by the Magistrate to cancel the bond. Until such cancellation takes place, the bond executed by the accused and the sureties shall survive. 16. In the meanwhile, i.e. until the bond gets cancelled as stated above, in order to secure the presence of the accused, the Magistrate may issue a process which may be either a summons or a warrant (Bailable or non-bailable) for his arrest. Before the bond gets cancelled, if the accused appears, the Magistrate, on an appropriate petiton under section 70 Cr.P.C., may cancel the warrant issued. Until the bond gets cancelled, there is no requirement to get a fresh bond executed by the accused and the sureties. If once the bonds stand cancelled in terms of Section 446-A of the Criminal Procedure Code, then the accused can be released only on execution of a fresh bond with or without sureties as the case may be. Thus, it emerges tacitly clear that prior to the introduction of Section 446- A, the bail bond shall stand cancelled only when the bail is cancelled either under Section 437 or 439 of the Criminal Procedure Code, whereas , now, such cancellation takes place automatically by operation of Section 446-A of the Criminal Procedure Code without there being an order of cancellation of bail. If once bail itself is so cancelled, the only remedy for the accused is to get into judicial custody and then apply for fresh bail. In view of all the above, the issuance of Non bailable warrant by the lower Court does not require interference. 17. In the result, the Criminal Original Petition is allowed; the order of the learned Judicial Magistrate No.II, Gobichettipalayam dated 30.10.2009 made in C.M.P.No.1651 of 2009 is set aside; however, the latter part of the order issuing non-bailable https://hcservices.ecourts.gov.in/hcservices/ warrant is confirmed, giving liberty to the petitioner to work out his remedy under Section 70(2) of Code of Criminal Procedure before the Magistrate. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kmk/pal To 1. The Judicial Magistrate No.II, Gobichettipalayam. 2.-Do-Through The Chief Judicial Magistrate, Erode. 3.The Inspector of Police, Kavindpadi Police Station Erode District. 4. The Public Prosecutor, High Court, Madras. Copy to 5.The Registrar-General, High Court, Madras. 6.The Registrar-Judicial, High Court, Madras. 7.The Section Officer, 'B' Section, High Court, Madras. 8.The Section Officer, 'F' Section, High Court, Madras. 1 cc To Mr.N.Manokaran, Advocate, SR.4353 Crl.O.P.No.1439 of 2010 jp(co) pmk.29.1.2010. https://hcservices.ecourts.gov.in/hcservices/