JUDGMENT
K. Hema, J.
1. This appeal arises from the order passed by the court below under Section 446 of the Code of Criminal Procedure (‘Code’, for short) directing the appellant to pay penalty of Rs. 3,000/- and in default of payment of penalty and on exhausting the steps contained in
Section 421 of the Code to undergo imprisonment in civil jail for a period of two months each.
2. The appellants are the sureties of an accused in a sessions case. They had executed a bond for Rs. 25,000/- for appearance of the accused before the sessions court. On one particular day, the accused failed to appear and hence the court issued non-bailable warrant and notice against the sureties. A case was also registered against them and after giving sufficient opportunity to show cause, the appellants were directed to pay penalty. They were also directed to undergo imprisonment in civil jail for a period of two months. The said order is under challenge in this appeal filed under Section 449 of the Code.
3. On going through the order under challenge, I find that the order is per se illegal. It is seen from the order under challenge itself that there was no “default” on the part of the accused, which resulted in forfeiture of bond. The court below has written in the order itself that the day on which the warrant was issued against the accused, though the accused did not appear, his counsel had filed an application stating that the accused was present before the court in the morning, but he left the court since he had stomach pain. But the said application was rejected without assigning any reason. It can also be seen from the proceedings that the accused had appeared before the court on the very next posting. In such circumstances, it cannot be said that the accused forfeited the bond as contemplated under Section 446 of the Code.
4. A bond for appearance can be said to be forfeited, only if there is a willful default on the part of the accused in not appearing before the court. It is needless to say that an accused can be absent in court due to various reasons on a particular occasion. When the counsel files an application, it follows that the accused was vigilant and he had taken steps to instruct his counsel to file an application. Such an accused cannot be said to have forfeited the bond by reason of any willful default. It is only in cases where there is willful default on the part of the accused to appear in court, forfeiture of bond will follow and penalty will incur.
5. In the above circumstances, there is absolutely no proof before the court to show that the accused had forfeited the bond. In the absence of any such proof that the bond has been forfeited, the court shall not proceed under Section 446(1) of the Code against the accused or the sureties. It is also evident from the order under challenge itself that the court has not recorded any ground of proof of satisfaction that the bond has been forfeited. The mere fact that the accused failed to appear in court once, and despite filing of an application warrant was issued, will not suffice to hold that bond is forfeited.
6. It is not the failure of the sureties in producing the accused before the court which will incur penalty. It is the willful default on the part of the accused in not appearing before the court which would lead to forfeiture of bond and incurring of penalty. But the sureties have been directed to pay penalty, since they failed to produce the accused before the court. This is not proper. It is also seen from the order under challenge that the accused had entered appearance on the very next day and offered fresh sureties and executed fresh bond. Still the court has proceeded against the sureties for which the reasons are not satisfactory.
7. The court below called upon the sureties to show cause whether there is any reason for the failure of the accused in appearing in court or in producing the accused in court on a particular day. Section 446(1) of the Code does not provide for issuance of such a show cause notice. The notice expected to be issued under Section 446(1) of the Code is to show cause why the person who forfeited the bond shall not pay the penalty or show cause why penalty shall not be paid. The court has evidently not called upon the appellants to show cause as required under Section 446(1) of the Code.
8. Apart from all these, imposition of penalty and imprisonment in civil jail, without issuing a show cause notice as contemplated under Section 446 of the Code are also illegal. The penalty can be imposed only if the accused or the sureties do not show cause for not paying penalty which is already incurred by reason of forfeiture of bond. In this case, such an occasion did not arise because the court has not called upon these persons to pay the penalty or show cause why they shall not pay the penalty as contemplated under Section 446 of the Code. Had such opportunity been given, they could have put forward their explanation which would have persuaded the court to drop the proceedings against them.
The order directing the petitioners to undergo imprisonment in civil prison is premature also. The court can sentence a person to undergo imprisonment in civil jail under Section 446 of the Code only after exhausting all the steps under Section 421 of the Code, or if they fail to pay penalty imposed on them. This stage has not come. Therefore, the order directing the appellants to undergo imprisonment in civil jail also is illegal.
The order under challenge is set aside. Appeal is admitted with notice to learned Public Prosecutor. Heard both sides and it is allowed.