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Judgment
J.D. Kapoor, J.—All the five petitions Crl.M. (M) 1848/2003, 1855/2003, 1854/2003, 1850/2003, 1849/2003 are collectively disposed of by this order as they arise out of the same impugned order dated 9th April, 2003 passed by learned Metropolitan Magistrate. The impugned order is bad in law per se as it is in violation of the relevant mandatory provisions of Code of Criminal Procedure.
Petitioners moved an application before the learned Magistrate for exemption on the ground that they have to meet a foreign delegation. Learned MM not only rejected the application but forfeited the personal bonds of the petitioners and issued non-bailable warrants against them and notice to their sureties. Impugned order reads as follows:-
9.4.2003
Pr: Rep. of the complainant with counsel
Counsel for the accused.
Exemption application moved on behalf of all the accused. Exemption has been sought for accused Asha Raje Gaekwad on medical grounds. Medical Certificate is attached. Accused Asha Raje Gaekwad is exempted for today only. Exemption has been sought regarding accused No. 1, 2, 3 on the ground that they have to meet foreign delegation. This cannot be ground. Accused persons were well aware of the date in advance and they have chosen not to come to Court. On this ground application cannot be allowed. Exemption application of accused no. 1, 2, 3 is rejected. Bail bond of accused persons forfeited. Issue NBWs against accused and notice to sureties for 14.7.03. Reply to the application filed. Copy given.
Sd/- MM 9.4.03
Rejection of an application for exemption is not a ground for either forfeiting the personal bond or the surety bond or issuing non-bailable warrants or notice to the surety as such a course is impermissible by relevant provision of law viz. Sections 87, 89, 205, 441 and 446 CrPC. Section 205 Cr.P.C. empowers the Magistrate to dispense with personal attendance of the accused. It provides as under:-
Magistrate may dispense with personal attendance of accused.- (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.-
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.
As is apparent from the bare provision of Section 205 CrPC if any application for exemption from personal appearance is rejected, the only course to the Court is to either direct the accused to appear on the next date or to issue summons for appearance.
Power to issue a warrant to arrest vests in the Court by virtue of Section 87 Cr.P.C. It provides as under:-
Issue of warrant in lieu of, or in addition to, summons.- A court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any persons, issue, after recording its reasons in writing, a warrant for his arrest--
(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for is appearance, the court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
Bare perusal of this provision shows that warrant of arrest can be issued only in the following circumstances that too after recording the reasons in writing: (i) that the accused has been absconding; (ii) that the accused will not obey the summons; (iii) that the accused has not appeared after proof of due service of summons upon him.
Rejection of an application for exemption does not mean that the accused has been absconding or will not obey the summons or that he has not appeared after proof of due service of summons upon him.
Section 89 Cr.P.C. empowers the Court to issue a warrant directing that such person be arrested and produced before him in case person who is bound by any bond to appear before the Court does not appear. Section 89 reads as under:-
Arrest on breach of bond for appearance.- When any person who is bound by any bond taken under this Code to appear before a court, does not appear, the officer presiding in such court may issue a warrant directing that such person be arrested and produced before him.
As is apparent, rejection of application for exemption from personal appearance does not fall within "non-appearance" as contemplated by Section 89 CrPC.
Let us examine the relevant provisions of forfeiture of bonds and effect thereof. Section 441 CrPC relates to execution of bond by a person released on bail and bond executed by his surety or sureties. It reads like this:-
Bond of accused and sureties--(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or court, as the case may be, by one or more sufficient sureties conditioned that such persons shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or court, as the case may be.
(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or sufficient, the court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the court, as to such sufficiency or fitness.
Section 446 provides the procedure when bond has been forfeited and is as follows:-
Procedure when bond has been forfeited-(1) 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 has subsequently been transferred, that the bond has been forfeited,
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,
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.
Section 446A relates to cancellation of bond and bail bond and provides as under:
446A. Cancellation of bond and bail bond-Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition-
(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and
(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:
Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the court, as the case may be, thinks sufficient.
Following broad conclusions emerge from the conjoint reading of aforesaid provisions:-
(a) Where a bond is for appearance either by a person himself or by one or more sureties, the Court has to satisfy itself before forfeiting it that such a person or a surety has committed breach of a condition.
(b) Court may call upon any person including the surety bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
Again rejection of application for exemption from personal appearance is not a breach of condition of the bond.
Thus harmonious and cumulative effect of aforesaid provisions viz. Sections 205, 87, 89, 441, 446 Cr.P.C is that rejection of an application seeking exemption from personal appearance due to some contingency, by no stretch of imagination, can come within the ambit of either absconding or not obeying the summons or nonappearance despite proof of due service of summons or "non-appearance" as contemplated by Section 89 Cr.P.C. nor such "non-appearance" is a breach of condition of the bond either of a person who is on bail or of a surety that such a person shall attend at the time and place mentioned in the bond.
To sum up following conclusions emerge from the aforesaid legal provisions:-
(1) No Court shall, after taking cognizance of the offence by way of summons issue warrant of arrest against any person unless it records the reasons in writing, as provided u/s 87 Cr. P.C. that the said person has (a) either been absconding or (b) shall not obey the summons or (c) has failed to appear despite proof of due service of summons upon.
(2) No Court shall issue warrant of arrest in case application for exemption from personal appearance is rejected as rejection of such an application does not come within the ambit of aforesaid eventualities viz (a) or (b) or (c).
(3) No Court shall issue warrant of arrest in the event of rejecting the application for exemption as, according to provision of Section 205 Cr.P.C. Court can either direct appearance of such a person or issue summons for him.
(4) No Court shall forfeit personal bond or surety bond unless the person bound by the bond does not appear. Rejection of application for exemption from personal appearance does not amount to "non-appearance" as contemplated by Section 89 Cr.P.C. as such "nonappearance" does not amount to breach of condition either of a personal bond or of a surety bond and, therefore, such a bond cannot be forfeited for the purpose of Section 446 Cr.P.C.
(5) Before proceeding u/s 446 Cr. P.C. against the accused or a surety, Court has to satisfy itself about the proof of forfeiture of a bond of a person or a surety and it is mandatory for the Court to record reasons of such a proof.
In the result, petition is allowed, impugned order is set aside.
So far as request of the counsel for quashing the proceeding or recalling of the order of summoning is concerned, petitioner has an independent remedy of moving an application before the learned Trial Court as held by the Supreme Court in K.M. Mathew Vs. State of Kerala and another,
Petitioner shall move the said application within two months and the learned Trial Court shall decide the same as expeditiously as possible and not later than six moths and till the application is decided petitioners shall remain exempted from personal appearance. Since this Court is receiving large number of petitions u/s 482 CrPC against similar or near similar orders as the impugned order, copy of this judgment be sent to all the judicial officers for following the law laid down in this judgment.