Ashok Diwan Vs State of Chhattisgarh

_____________________________________________________________________ For the Appellant :Shri Gaurav Singhal, Advocate appeared on behalf of Shri Gautam Khetrapal, Advocate. For State / Respondent :Ms. M. Asha, P.L.

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Hon'ble Shri Justice Sachin Singh Rajput

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Judgment on Board

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11/04/2025

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This appeal under Section 449 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) has been filed by the appellant, being aggrieved by the order dated 11/11/2005 passed in M.J.C. No. 8/2005 by the III Additional Sessions Judge, Jagdalpur, District – Bastar (C.G.) by which the appellant was directed to deposit Rs. 20,000 - 20,000/- each total Rs. 40,000/-, the amount of bond submitted by him for taking the bail of Rajendra Gandhi and Arun Diwan who were facing Session Trial No. 160/2001 before the Trial Court. Session Trial No.160/2001 was pending before the Trial Court in which the accused person Rajendra Gandhi and Arun Diwan were granted bail and the present appellant stood as a surety and executed bail bond of Rs.20,000 – 20,000/- for each accused person totaling to Rs.40,000/. The record further reflects that the sessions trial was listed before the learned trial Court on 22/09/2005. On that day, the accused - Rajendra Gandhi and Arun Diwan did not appear before the trial Court and moved an application under section 317 of the Cr.P.C. Accused – Arun Diwan in his application pleaded that he

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is suffering from hyper-tension and he had appeared before the learned trial court on that day, however due to rise of the blood pressure, he was taken to the Doctor for treatment and looking to his high blood pressure, he was admitted in the Jagdalpur Hospital. Therefore he prayed that his non-appearance may be condoned on that day. Accused – Rajendra Gandhi pleaded in the application that his brother in law is seriously ill and in order to look after him, he has gone to Mumbai and therefore his non-appearance on 22/09/2005 may be condoned. The learned trial court vide it’s order dated 22/09/2005 rejected both the applications and notice was issued to the appellant as to why the amount of bail bond and surety should not be recovered from him. Non-bailable warrant was also issued against the accused Rajendra Gandhi and Arun Diwan.

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Thereafter, the proceedings under section 446 of the Cr.P.C. was initiated by the learned trial court which was registered as Criminal M.J.C. No. 08/2005. The appellant was issued notice indicating therein that, the appellant is required to deposit Rs.40,000/- of surety amount. The appellant submitted it’s reply and stated that the accused persons were appearing regularly before the trial court and on 22/09/2005 accused – Arun Diwan was present before the Court; however his ill health he has taken to Maharani, Hospital, Jagdalpur and looking to his health condition he was admitted in the Hospital for proper treatment. On that day accused - Rajendra Gandhi was out of town and had gone to Mumbai, therefore he could not be produced before the Court. Also pleaded that on the next of date of hearing i.e. 29/09/2005, the accused persons were present before the trial Court. Therefore for just one day, due to bonafied reasons, the accused persons could not be produced before the trial Court in light of the bond submitted by the appellant. Therefore, the proceedings against him under section 446 of the Cr.P. C. may be dropped.

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Learned Trial Court considered the reply, on due consideration of the reply submitted by the appellant, vide impugned order dated 11/11/2005, disagreeing

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with it, in exercise of the power under section 446 of the Cr.P.C. and directed the appellants to deposit Rs.20,000/- each total Rs.40,000/- as surety within a period of 15 days which led to filing of the appeal before this Court.

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Learned Counsel for the appellant submits that though before exercising power under section 446 of the Cr.P.C., a show cause notice was issued to the petitioner, however, the learned trial court has not considered the reply submitted by the appellants in it’s letter and spirit. He submits that after the petitioner stood surety of the accused Rajendra Gandhi and Arun Diwan in S.T. No. 160/2001, both of them were regularly appearing before the learned trial Court, only on 22/09/2005, due to unavoidable circumstances as appellant - Rajendra Gandhi had gone to Mumbai to look after his brother-in-law and accused - Arun Diwan though appeared before the learned trial court, but however he fell ill and looking to his conditions he was admitted in the Maharani Hospital, Jagdalpur. Therefore, the learned trial court ought to have considered these genuine reasons for nonappearance and not to have forfitted the bail bond of the appellant and directing the appellant to pay Rs.20,000/- each as the surety amount within a period of 15 days by the impugned order. He further submits that on the next date of hearing, the accused persons have appeared before the learned trial court. They were convicted by the learned trial court vide it’s judgment dated 29/09/2005, which was subject to appeal before this Court. Therefore, the impugned order may be set aside and the appeal may be allowed.

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Per contra, learned Counsel for the State opposing the submissions and submits that the appellant put surety for these two accused persons and it was his duty to produced them on each and every date of hearing before the learned trial court and on 22/09/2005 he failed to do so. Therefore, the exercise of the power under section 446 of the Cr.P.C. by the learned trial court does not require any interference by this Court.

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Heard learned counsel for the parties, considered their rival submission and also

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perused the record with utmost circumspection.

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In order to appreciate the submissions made by the learned counsel for the parties

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it would be appropriate to quote section 446 of the Cr.P.C. which is as under :

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“446. Procedure when bond has been forfeited -

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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 subsequently been transferred, that the bond has been forfeited,

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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,

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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.

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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.

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(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:

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1[Provided that where such penalty is not paid and cannot be recovered in the manner the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may be extended to six months.

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The Court may,² [after recording its reasons for doing so], remit any portion of the penalty mentioned and enforce payment in part only.

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(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.

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(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission Constitutes a breach of the conditions of his bond, or of a bond executed in lieu 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 this section 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.

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The perusal of this section clearly indicates that the power lies with the Court to

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forfeit the bail bond and also direct recovery of the same, after giving an opportunity of hearing to his surety. In the case in hand such contingency has been

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fulfilled by the learned trial court as there is no dispute that the notice was issued which was duly replied by the learned trial court. Sub Section (3) of Section 446 of the Cr.P.C. is also give the discretionary power that Court may after recording its reasons for doing so remake any portion of the penalty mentioned and imposed the payment part only. Hence it is not obligatory upon the Courts to always forfeit the entire amount of bond in surety and in deserving cases, considering the facts and circumstances of the case and recording a reasons in writing, reduce the penalty of the forfeiture of the bond under Sub Section (3) of Section 446 of the Cr.P.C. In this context, it is important to notice the judgment of the Hon’ble Supreme Court in case of Istkar Vs. State of Uttar Pradesh & Anr. reported in 2022 SCC Online SC 1801 it’s a case wherein the penalty of Five Lakhs imposed against the appellant in that case was reduced to Rs.5000/- by the Hon’ble Supreme Court considering the facts and circumstances of the case and also in paragraph -19 observed as under : -

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“19.Further, Section 446 CrPC lays down the procedure for forfeiture of bond for appearance or for production of property and also for any other bond under the Code. The provision empowers the Court to call upon such person bound by the bond to pay penalty or to show cause to why he should not pay the penalty. Sub-section (3) of Section 446 CrPC vests discretionary power to the Court to remit any portion of the penalty mentioned and enforce payment in part only, after recording its reasons for doing so. This clearly enunciates that even when a person fails to show sufficient cause as to forfeiture of the bond amount, the Court is not bound to direct payment or recovery of the entire bond amount. The Court can exercise its discretion and remit some portion of the bond owing to the nature of the offence, status and position of the person, and having regard to and having regard to other facts and circumstances of the case or when the amount of bond is unduly excessive.”

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On perusal of the record, it appears that the petitioner stood as surety for the accused – Rajendra Gandhi and Arun Diwan who were facing trial in S.T. No.160/2001 and from the record it does not appear that earlier the bail bond and surety submitted by the appellant was forfeited. From the record it appears that

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only on 22/09/2005, the accused persons could not appear and they have bonafidely filed an application for their non-appearance under section 317 of the Cr.P.C. giving a adequate reasons. However, the learned trial court rejected their application and proceeded to issue show cause notice to the appellant for recovery of the surety of the bail bond amount. From the record it also appears that on the next date of hearing i.e. 29/09/2005, both the accused persons appeared and later on they were convicted by the learned trial Court. As per learned counsel for the appellant having being preferred by them was partly allowed. Even though the appellant failed to produced the appellant on a particular day but the reason assigned by them for their non-appearance was beyond the control of the appellant. Therefore, the trial Court while deciding the application under section 446 of the Cr.P.C. ought to have consider this in directing recovery for penalty. Since the accused have been convicted later on and their appeal being allowed partly by this Court as per submission made by learned Counsel for appellant, ends of the justice would be served, if the amount is reduced to Rs.2000/-. Therefore, the appeal is allowed in part, and instead of Rs.40,000/-, the appellant is directed to deposit Rs.2000/-. This Court while admitting the appeal 25.11.2005, as directed the appellant to deposit Rs.10,000/- and as per the learned counsel for the appellant he has complied with the order. Therefore the amount of Rs.8000/be refunded back to the appellant.

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10.Copy of this judgment with records be sent back to trial Court for information and necessary compliance. Sd/-

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Sd/-

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(Sachin Singh Rajput)

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Judge

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Ashish

Ashok Diwan v. State of Chhattisgarh

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Ashok Diwan v. State of Chhattisgarh

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