Case Note & Summary
The appellant, Sri Muniyappa, was a surety for accused Nos.1 and 3 in Sessions Case No.56/2016 before the II Additional District & Sessions Judge, Tumkur. During trial, accused No.1 failed to appear, and on 12.01.2017, the Sessions Court issued notice to the appellant. On 25.03.2017, the appellant appeared and undertook to produce accused No.1, but was unable to do so as the accused had absconded. Consequently, on 13.10.2017, the Sessions Court ordered the Investigating Officer to file a split chargesheet against accused No.1 and directed registration of a separate criminal miscellaneous against the appellant. The appellant filed an application under Section 446(3) CrPC, which was partly allowed on 29.09.2018, directing him to deposit the bond amount of Rs.40,000/- within sixty days. Aggrieved, the appellant filed the present appeal under Section 449(ii) CrPC. The High Court examined the facts and found that the appellant had not wilfully defaulted; he had appeared before the Court and made efforts to produce the accused. The Court noted that the Sessions Court had not considered the appellant's financial condition or the fact that the accused had absconded. Relying on the principle that forfeiture should be proportionate, the High Court set aside the order to the extent of Rs.35,000/- and directed the appellant to deposit only Rs.5,000/- as penalty. The appeal was partly allowed.
Headnote
A) Criminal Procedure Code - Forfeiture of Bond - Section 446(3) CrPC - Quantum of Penalty - The Sessions Court partly allowed the application under Section 446(3) CrPC and directed the surety to deposit the bond amount of Rs.40,000/-. The High Court held that the forfeiture of the entire bond amount was excessive as the surety had made efforts to produce the accused and there was no wilful default. The Court reduced the penalty to Rs.5,000/- considering the surety's financial condition and the fact that the accused had absconded. (Paras 1-8)
B) Criminal Procedure Code - Surety Liability - Section 446(3) CrPC - Wilful Default - The Court observed that the surety cannot be penalized for the entire bond amount if the default is not wilful. The surety had appeared before the Court and undertook to produce the accused but could not do so as the accused had absconded. The Court held that the quantum of penalty should be proportionate to the default and the surety's conduct. (Paras 5-8)
Issue of Consideration
Whether the Sessions Court was justified in directing the appellant/surety to deposit the entire bond amount of Rs.40,000/- under Section 446(3) CrPC despite the appellant's inability to produce the absconding accused and the absence of wilful default.
Final Decision
The High Court partly allowed the appeal. The order dated 29.09.2018 in Crl.Misc.No.706/2017 was set aside to the extent of Rs.35,000/-. The appellant was directed to deposit only Rs.5,000/- as penalty within four weeks from the date of the order.
Law Points
- Section 446(3) CrPC
- forfeiture of bond
- surety liability
- wilful default
- quantum of penalty
Case Details
2021 LawText (KAR) (03) 34
Criminal Appeal No.1992 of 2019
Justice Ashok G. Nijagannavar
Sri Basavaraju P (for appellant), Sri Rahul Rai K (HCGP for respondent)
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Nature of Litigation
Criminal appeal against order of forfeiture of bond amount under Section 446(3) CrPC.
Remedy Sought
Appellant sought setting aside of the order dated 29.09.2018 in Crl.Misc.No.706/2017 passed by the II Additional District and Sessions Judge, Tumkur, directing him to deposit the bond amount of Rs.40,000/-.
Filing Reason
The appellant, as surety for accused Nos.1 and 3, was unable to produce accused No.1 who had absconded, leading to forfeiture proceedings.
Previous Decisions
The Sessions Court partly allowed the application under Section 446(3) CrPC and directed the appellant to deposit the bond amount of Rs.40,000/- within sixty days.
Issues
Whether the Sessions Court was justified in directing forfeiture of the entire bond amount of Rs.40,000/- under Section 446(3) CrPC.
Whether the quantum of penalty was excessive given the circumstances of the case.
Submissions/Arguments
Appellant argued that he had made efforts to produce the accused but could not do so as the accused had absconded, and that the forfeiture of the entire bond amount was harsh and disproportionate.
Respondent/State supported the Sessions Court's order, submitting that the surety had failed to fulfill his undertaking.
Ratio Decidendi
The forfeiture of the entire bond amount under Section 446(3) CrPC is not automatic and must be proportionate to the default. Where the surety has not wilfully defaulted and the accused has absconded, the court may reduce the penalty considering the surety's financial condition and efforts made.
Judgment Excerpts
This appeal has arisen out of the order dated 29.09.2018 passed in criminal Misc. No.706/2017 by the II Additional District & Sessions Judge, Tumkur, partly allowing the application under Section 446(3) CrPC and directing the appellant/surety to deposit the bond amount of Rs.40,000/- within sixty days from the date of the order.
The appellant was a surety for accused Nos.1 and 3 in Sessions Case No.56/2016... During the course of trial, the accused No.1 failed to appear before the Sessions Court.
The appellant appeared before the Sessions Court and undertook to keep the accused No.1 present before the Court. But, he was unable to keep the accused No.1 present before the Court.
The Sessions Court passed order dated 13.10.2017 and directed the Investigating Officer to file split chargesheet against accused No.1 and also ordered to register separate criminal miscellaneous against the appellant / surety.
The Court held that the forfeiture of the entire bond amount was excessive and reduced the penalty to Rs.5,000/-.
Procedural History
The appellant stood surety for accused Nos.1 and 3 in Sessions Case No.56/2016. Accused No.1 failed to appear, and on 12.01.2017, notice was issued to the appellant. On 25.03.2017, the appellant appeared and undertook to produce accused No.1 but failed. On 13.10.2017, the Sessions Court ordered split chargesheet and registration of criminal miscellaneous against the appellant. The appellant filed an application under Section 446(3) CrPC, which was partly allowed on 29.09.2018, directing deposit of Rs.40,000/-. The appellant filed Criminal Appeal No.1992 of 2019 under Section 449(ii) CrPC before the High Court, which partly allowed the appeal on 31.03.2021, reducing the penalty to Rs.5,000/-.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 446(3), 449(ii)
