Forfeiture of surety bond

Contention of petitioner was that she had stood surety for accused on humanitarian grounds and she traced out the accused and submitted application before the Trial Court intimating that the accused was confined in District Jail of other Province

On the application of surety, the Trial Court had also issued production order, however, the accused was not produced by the said Jail Authorities

After his release from jail, accused did not appear before the Trial Court, however, the surety appeared before the Trial Court together with accused and filed two separate applications, one by accused for his surrender before the Trial Court and the other by the applicant/ surety seeking time to submit reply to notice under section 514, Cr.P.C.

Applicant/surety submitted her reply

Defence contended that when the applicant produced the accused before the Trial Court, then imposition of 1/4th surety amount upon her was unjustified

Validity

Accused was not only produced by the applicant/surety, but he also himself surrendered through his application and then was taken into custody by the Trial Court

Applicant/ surety stood absolved of her legal liability to produce the said accused before the Trial Court

Impugned order in view of said legal-cum-factual position seemed to be unjustified and could not be maintained

Revision petition was allowed by setting aside impugned order.

Petitioner impugned order of Trial Court whereby vide proceedings under S.514, Cr.P.C., a fine was imposed on petitioner who had stood surety for accused, and such accused had absconded

Contention of petitioner was that he had stood surety for accused on humanitarian grounds and tried best to locate accused but did not succeed

Validity

In the present case, it had not been shown that petitioner stood surety for any monetary or personal gain and there was no evidence that he had been careless or that he did not make any effort to produce accused before Trial Court

Impugned order was modified and quantum of penalty upon petitioner was reduced

Revision was disposed of, accordingly.

Applicant invoked revisional jurisdiction of the High Court against the order passed by Sessions Judge whereby his application for the return of surety was disposed of by forfeiting the full amount of the surety

Applicant had specifically stated in his application that despite his best efforts, he had remained unable to contact the accused, for whom he stood as surety

Accused was not charged with any heinous crime or any such crime involving capital punishment

Forfeiting the entire surety amount was unreasonable and too harsh especially when there was nothing on record to suggest that the applicant had any ulterior motive or that he had connived with the accused or any other consideration except the benevolence of the accused

Order of forfeiture was maintained, but the amount to be forfeited was reduced to 20% of the total bail bond

Revision application was disposed of accordingly.

Petitioner sought a further reduction of forfeited surety amount even though the Trial Court had already reduced the same to 25%

Surety/husband of the petitioner had died prior to absconsion of accused, therefore S. 514(6), Cr.P.C. was applicable which provided that the surety, on death, would be discharged from all the liabilities in respect of the bond

Proceedings initiated by Trial Court were contrary to the mandatory provision of subsection (6) of S. 514, Cr.P.C., thus were of no legal effect

Petition was disposed of accordingly.

High Court observed that in subordinate courts when an interim bail is granted up to a certain date, thereafter, if the same is extended then care should be taken that accused furnishes surety bond up to that date or suitable amendment is incorporated in the bond which was obtained from the surety to the effect that he will be responsible to produce the accused on next date of hearing or on any date, fixed subsequent to that date

Surety deed being used in the court of first instance provides that the surety will be responsible for production of the accused on one date only which is provided next after grant of ad-interim bail and on account of such defect the Zamanat Nama, which is available in printed Form, is being accepted in routine without realizing the consequences as to what will be the situation in case the matter is adjourned to some other date and the bail is extended any further

Printed Form should incorporate a covenant that the surety shall be bound to produce the accused till disposal of application for the pre-arrest bail or in the alternative the surety should give an undertaking to produce the accused till then.

Purpose of standing surety of the accused is for production of the accused for whom surety was given and when the accused appears before the court the liability of the surety is over and the matter rests between the court and accused person

Surety is not under any obligation to produce the accused on a date for which he has not executed the bond

Surety bond is a contract between the surety and the Court that in case the accused defaults in appearance, only on a date for which the surety bond is executed, the surety would be responsible for the same.

Accused was granted interim bail for a certain period i.e. till the next date of hearing and the bond submitted by the surety was only valid till that date and could not be treated to have been extended automatically

Surety bond already submitted by the surety for a specific period could not be treated valid for the extended or subsequent period

Accused had not disappeared during the period for which the surety bond was submitted, therefore, surety was not responsible for the absence of the accused after that period and had no liability in that behalf

Bond tendered by the surety before the Trial Court clearly showed that he had taken responsibility for the conduct and appearance of accused till the next date of hearing

Order of forfeiture of bond was set aside.

Petitioner had undertaken the liability by himself, therefore, it did not lie in his mouth to say that on account of his financial condition he could not pay the amount of bond executed by him and had stood surety of the accused out of his benevolence and without any monetary gain

No legal embargo existed that the amount of bail bond in full could not be forfeited

Trial Court was justified in imposing the penalty after observing all legal formalities

Application was dismissed.

Surety is liable to produce the accused in the court, in view of his undertaking at the time of furnishing surety, on each and every date of hearing and in case he fails to produce the accused he would be liable to be penalized.

Petitioners stood surety for accused involved in a case registered under Ss. 324 & 353, P.P.C. read with S.13 Pakistan Arms Ordinance, 1965 and executed a bond on behalf of accused

On failure of the said accused to appear on the date fixed for hearing, Trial Court cancelled his bail, forfeited surety bonds, directed the petitioners to deposit the amount of Rs. 60000/- each as penalty out of amount of surety of Rs. 80000/

Validity

Record showed that petitioners stood surety of the accused out of benevolence and not for ulterior motive or monetary gain, therefore, they were not to be treated harshly nor punished severely without there being extra-ordinary circumstances

Accused for whom the petitioners had stood surety was fugitive from law in a murder case and as such it was humanly not possible for the petitioners to ensure his availability before the court

Taking into consideration financial position of petitioners, forfeiture of bonds, submitted by them to the extent of Rs. 60,000/- each, seemed to be aggressive, hence, the petitioners deserved leniency

High Court observed that default would be adequately punished by requiring each of petitioners to pay Rs.40,000

Revision petition was allowed accordingly.

Petitioner stood surety for accused involved in criminal case registered under Ss. 302, 34 & 109, P.P.C. and executed a bond on behalf of accused after he was granting ad interim bail before arrest

Accused appeared on due date but thereafter remained absent, due to which his bail plea was rejected, bail bonds were forfeited and surety was ordered to be proceeded under S. 514, Cr.P.C. and double the amount of ad-interim bail order, was imposed upon him

Validity

Record showed that petitioner entered into a contract to produce the accused till certain period of time and inadvertently undertook to pay the penalty of double amount instead of original surety amount

Petitioner could not be held responsible for presence of the accused a day longer than the date mentioned in the bail bond

Order passed for forfeiture of surety bond and for depositing double the amount of the surety bond was against law

Revision petition was accepted.

Accused for whom applicant stood surety, having remained absent from court on the date of hearing, surety bond executed by the applicant was forfeited, and surety was asked to deposit surety amount

Validity

Police had seized 18-cattle suspected to be stolen

Said cattle were handed over to a person on superdari after accepting his application by the Trial Court on furnishing solvent surety of Rs. two lac

Applicant stood surety and also executed bond that in case of any default, he will pay Rs. Two lac as fine

Subsequently, surety failed to produce cattle before the court despite issuing several notices and ultimately intimated the court that cattle had been stolen away, copy of FIR was produced

Applicant had failed to perform his duty as per terms and conditions mentioned in the bond executed by him before the Trial Court

Trial Court imposed fine amounting to Rs. Two lac upon the applicant and directed him to pay the said amount within 15 days

Applicant was duty bound to inform the Trial Court regarding commission of theft of cattle instantly but he deliberately avoided to come forward to perform his duty and remained silent

Trial Court directed the applicant to deposit the fine amount within 15 days time but during the period of eight years, he had failed to deposit the said amount, hence he did not deserve for any concession

Previously, applicant had filed another application but he continuously remained absent, thus same was dismissed for non-prosecution

Applicant had filed present petition with unexplained delay of 44 days for claiming same relief, which was barred by time and even no sound ground had been shown for accepting his application

Application was dismissed in circumstances.

Prior to commencement of proceedings under S. 514, Cr.P.C. forfeiture of surety bond would be essential and subsequent issuance of written show cause notice to surety was mandatory before imposition of penalty

Mere presence of surety or issuance of a simple notice to surety for appearance before the court could not be treated as show cause notice

In absence of such mandatory notice, imposition of penalty or other proceedings against surety would be illegal, void and liable to be set aside.

Accused for whom appellant stood surety, had been regularly appearing before the Trial Court , but in spite of lapse of 9 years the trial could not conclude

When it came to the knowledge of the surety that accused had gone to Pakistan for treatment, surety due to apprehension that accused could abscond, filed an application for withdrawal of surety bond

Trial Court did not pass any order on that application and simply placed the same on the record

When accused did not turn up on the date fixed for hearing, Trial Court forfeited the surety bond

Validity

Surety (appellant) had moved application for withdrawal of surety bond well before the date of hearing

No order was passed on said application and the Trial Court straightway passed order of forfeiture of surety bond and directed the surety to deposit forfeited amount

Impugned order should have recorded the reasons while forfeiting the surety bond, and after forfeiture of the same, surety must have been served with a show-cause notice that why the forfeited amount could not be realized from him

Section 514, Cr.P.C. provided that it must be proved to the satisfaction of the court that the bond had been forfeited and it was only after such proof that the surety could be called upon to show-cause as to why the penalty should not be levied

Proof should be a prima facie proof based on evidence that bond had been forfeited

Non-issuance of notice in absence of prima facie proof would render the proceedings liable to be set aside

Trial Court had passed order in a hasty manner and without observing the relevant provisions of law and without following the procedure provided in S.514, Cr.P.C.

Judgment of the court being based on presumptions, same was not sustainable in the eye of law

Impugned orders were set aside and case was remanded to the Trial Court for decision afresh in accordance with law after affording reasonable opportunity to the surety.

Accused for whom petitioner stood surety, having absented himself from the court, bail of accused was dismissed in default and notice under S.514, Cr.P.C. was issued to the petitioner/surety; and attachment of the property of the petitioner, was directed

For proceedings under S.514, Cr.P.C., procedure which was to be adopted, was; (i) cancellation and forfeiture of bail bonds in favour of the State; (ii) issuance of show-cause notice to the surety that why penalty of the forfeited amount of bail bond could not be imposed and recovered from him; (iii) if the reply to the show-cause notice was made, or not made without any justification, then on the basis of the attending facts and circumstances, an order towards imposition of the penalty or otherwise, should be passed; (iv) for the recovery of the penalty amount, the proceedings towards attachment, and sale of the movable property of the surety, should be carried on; and (v) if the surety did not have any movable property, and failed to make payment of the penalty amount, then he could be sent to the civil jail for a term which could extend to six months

In the present case, Special Judge had not cancelled and forfeited the bail bonds, but had directly issued the notice under S.514, Cr.P.C.; and without making any struggle for reply to the show-cause notice, firstly had issued a warrant for attachment of the property of the surety; and without waiting for the same, had also issued bailable warrant of arrest against the surety

Impugned order could not be termed as justified, and was set aside with direction to the court to carry on the proceedings, accordingly.

Contentions of the surety that notice under S.514, Cr.P.C. was never served upon him, and that no lenient view was taken by the court and entire surety amount had been forfeited

Validity

Report regarding serving of notice revealed that the Trial Court had issued a notice under S. 514, Cr.P.C. and same was served upon the surety

Trial Court had adopted the procedure as provided under S.514, Cr.P.C.

Surety had not brought forward any mitigating circumstances to adopt a lenient view

Revision petition was dismissed with the observation that approach of the Trial Court appeared to be dynamic and progressive-orientated with the desire to discourage the accused persons from jumping bail bonds.

Where an accused person jumped bail bond, entire surety amount became liable to be forfeited in the absence of any mitigating circumstances.

Surety, assailed the order of Magistrate before the Sessions Judge who modified order passed by the Magistrate and reduced forfeited amount from Rs.50,000 to Rs.30,000

Validity

While forfeiting the surety bond under S.514, Cr.P.C., a balance was necessary

Present was a case where the principle of balance between too much 'severity' and too much 'leniency', was applicable, because absconded accused had appeared before the court to face the trial and reduced amount of surety bond had been deposited by the surety in the Treasury

Order passed by Sessions Judge being proper and legal warranted no interference by High Court.