S.444 CrPC | Court Should Not Initiate Criminal Proceedings Against Surety If He Seeks To Discharge Himself: Orissa High Court

The Orissa High Court has recently held that Courts should not initiate criminal proceedings against sureties if they seek to discharge themselves.

The Single Judge Bench of Justice Sangam Kumar Sahoo ruled that Courts must comply with the mandate of Section 444 of the Code of Criminal Procedure and should give a reasonable opportunity of hearing to the sureties before their bonds are forfeited.

“The object of taking surety, inter alia, is for the purpose of ensuring the availability of an accused before the Court by the surety when the dates of trial are fixed and on the date of pronouncement of judgment. The terms of a bond have to be construed strictly. When the bond is forfeited, it is the duty of the Court to record the grounds of proof on which the forfeiture is based. Nowhere it is provided that when a surety seeks to discharge himself, the Court concerned shall initiate criminal proceedings against him,” the Court observed.

The appellant stood as surety for the accused persons who were charge-sheeted under sections 147/148/323/294/149 of the Indian Penal Code read with section 3(1)(x) of the S.C. & S.T. (PoA) Act.

The four accused persons were released on bail as per the order of the Special Judge, Kalahandi-Nuapada at Bhawanipatna with certain conditions and one of such conditions was that they shall appear before the Investigating Officer on every Saturday at 10.00 AM.

However, after a few days, the appellant filed an advance petition in the Court praying that he may be discharged as surety. He stated in the petition that he came to know that the accused persons were entangled in another case for which they are unable to appear before the IO in the police station.

The Special Judge rejected the petition filed by the appellant and issued non-bailable warrant of arrest against the accused persons for their production on the fixed date. The Special Judge simultaneously directed to start a separate miscellaneous case against the appellant.

As per the direction of the Special Judge, a case was initiated and the appellant was given notice to file his show cause after forfeiture of bail bond as to why the amount of bond shall not be realized from him.

The appellant on receipt of the notice filed his show cause and stated his bona fide character in bringing to the notice of the Court the conduct of the accused persons in disobeying the bail order and to discharge him as the surety.

The appellant further prayed that since the accused persons have been acquitted of the charges levelled against them, fine should not be imposed on him. However, the Additional Sessions Judge, Nuapada imposed a penalty of Rs.20,000/- on the appellant and also issued D.W.A. along with conditional non-bailable warrant of arrest against him.

Being aggrieved by such order of the Court, the appellant approached the High Court.

Court’s Observations

After referring Section 444 of the Code in detail, the Court observed that if any surety seeks to discharge his bond, he is required to apply for the same before the concerned Court. After receiving application to that effect, the Court concerned is duty-bound to issue an arrest warrant against the person who was released on bail consequent upon the bond of such surety.

“Following the appearance of such person, the Magistrate shall discharge the bail bond of the surety and shall ask the person to find other sufficient sureties and if he fails to do the same, the Court can commit such person to jail,” the Court noted.

The Court further placed reliance upon the decision of the Supreme Court in Raghubir Singh and Others v. State of Bihar, where it was held that on discharge of the bail bond, the responsibility of the surety ceases and the accused person is put back to the position where he was immediately before the execution of the bail bond.

The Court observed that the direction to forfeit the bond involves a process of decision as to why the amount shall not be recovered from the executant. Therefore, it was of the considered view that the surety must be given an opportunity of hearing before the concerned Court decides to forfeit his bond.

“Law is well settled that before a decision is taken to forfeit the bond, a hearing to the affected party becomes the demand of natural justice and the same is to be read into a statute even though there is no express provision therein complying with the same unless the context of the statute excluded the rule of audi alteram partem,” the Court underlined.

In the case in hand, the Court below had ordered to impose penalty on the surety without giving him a reasonable opportunity of hearing and thus, Justice Sahoo disapproved the measure employed by the Additional Sessions Judge and observed,

“It seems that the learned Additional Sessions Judge -cum- Special Judge has failed to appreciate the aforesaid position of law and at the stroke of judicial passion, passed the impugned order by tightening criminal liability on a person who being the surety of the accused persons, with all bona fide credential, informed the Court of his predicament to continue as such. It was hardly incumbent upon the learned Presiding Officer to employ such harsh punitive measures on such a person.”

Consequently, the Court held that the forfeiture of the bail bond without giving opportunity of hearing to the appellant is illegal and suffers from the vice of derogation of principles of natural justice.

Further, in view of the bona fide conduct of the appellant in bringing to the notice of the Court the conduct of the accused persons in flouting the terms and conditions of the bail bond, the action taken against him was held to be unsustainable and accordingly, it was set aside.

Case Title: Pradeep Kumar Das v. State of Odisha

Case No: CRLA No. 286 of 2003

Order Dated: July 13, 2023

Counsel for the Appellant: Mr. Abhisek Pradhan, Advocate

Counsel for the Respondent-State: Mr. Sidharth Shankar Mohapatra Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 79

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