Smt. Kamla vs State of Himachal Pradesh

T.R. Handa, J.—Both, Criminal Appeal No. 64 of 1986 and Criminal Appeal No. 66 of 1986, have been filed u/s 449(2), Cr. P.C. and are directed against the same order of the Sessions Judge passed on 3rd July, 1986, u/s 446, Cr.P.C. It would, therefore, be convenient to dispose both these appeals by this common order.

The material facts are like this : Shri Ghera, the appellant in Criminal Appeal No. 66 of 1986, was convicted and sentenced to imprisonment till the rising of the court and to pay a fine of Rs. 1,000/- for the offence falling u/s 61 of the Punjab Excise Act by the Sub-divisional Judicial Magistrate, Nurpur. Feeling aggrieved, he preferred an appeal against his aforesaid conviction and sentence before the Sessions Judge. Along with the appeal he made an application u/s 389, Cr.P.C. praying for suspension of the sentence imposed upon him. The appeal was admitted by the Sessions Judge on 11-10-1985. On the same day the learned Sessions Judge passed the following order on the application u/s 389, Cr.P.C.:-

Heard As there are complicated questions of law and facts involved as also there is no likelihood of the appeal being taken up early, as such the operation of impugned judgment is suspended on appellant''s furnishing bail bond in the sum of Rs. 2,000/- with one surety of the like amount to the satisfaction of the trial court in pursuance of the instructions issued by the Hon''ble High Court of H.P. This order be executed if the applicant is not needed in any other case. Application stands disposed of.

Pursuant to this order, Shri Ghera furnished a bond in the sum of Rs. 3,000/-.

Smt.'' Kamla, the appellant in other appeal, being Cr. Appeal No. 64 of 1986, who is the mother of Gheru stood surety for her son and in that capacity executed a surety bond in the sum of Rs. 2,000/- before the trial Court. The language in which the personal bond and the surety bond were executed by Shri Ghera and Smt. Kamla respectively is reproduced below from the original bonds found on the record:�

Personal Bond

Whereas, I Ghara son of Dharam Chand, caste Sansi, resident of village Charni, Tehsil Nurpur, District Kangra, have been convicted in the abovesaid case for a...period and a fine of Rs, 1,000/-.

Whereas, in the abovesaid case I have filed an appeal in the court of learned Sessions Judge, Kangra at Dharamshala and that the learned court of the Sessions Judge has ordered the accused to file a fresh bail bond with one surety for a sum of Rs. 2,000/- subject to the condition that the appellant would attend the Sessions Judge on and when deserved and in case of dismissal of appeal surrender to the court as ordered. I, bind myself vide this personal bond and undertake to be bound by the said condition till the disposal of appeal. In case of default I will pay Rs. 3,000/- as penalty to the Government of Himachal Pradesh.

Thumb marked Accused.

Surety bond

I, Kamla w/o Dharma r/o Channi Tehsil Nurpur, District Kangra (surety) for Shera (accused) son of Dharam Chand r/o Chhani Tehsil Nurpur, District Kangra, who has filed an appeal in the Hon''ble Court on and when ordered by the court. In case of his failure so do so or fails to surrender so undergo the sender in case of dismissal of appeal, I, bind myself and stand surety that I will pay Rs. 2,000/- as penalty to the Government of H.P. State in case of this condition of this bond.

Thumb impression of Surety Kamla.

The bonds furnished by these appellants were forfeited by the Sessions Judge vide his order dt. 3-4-1986 which reads like this:

Present:� Shri P. C. Sharma, Advocate, for the appellant.

Shri F.C. Kahol, P. P. for the respondent.

The appellant is not present in person. Bonds are forfeited to the State of Himachal Pradesh. Let a show cause notice u/s 446, Cr.P.C. be issued on him and his surety to explain as to why the amount under the bond be not recovered from him. These proceedings be initiated in a separate file than the main case. Lower Court''s record has been received. Now for arguments the case to come up on 21-5-1986.

In response to the notices issued to the appellants pursuant to the aforesaid order dt. 3-4-1986, the appellants put in appearance before the Sessions Judge on 21-5-1986 when the case was adjourned to 3rd July, 1986, for filing reply by the appellants. On 3rd July, 1986 neither of the two appellants was present in person, though their counsel, Shri P. C. Sharma, appeared on their behalf. It was on that date that the learned Sessions Judge passed the impugned order inflicting penalty of Rs. 2,000/- on each of the appellants. The operative part of this order reads:

It appears that the respondent Sh. Ghera (appellant in Appeal No. 106 of 1985) has intentionally evaded to put in appearance or he does not want to explain with respect to his absence on 3-4-1986 as also today and he has nothing to say with respect to the same despite of affording opportunity to explain his conduct. The amount of bond Rs. 2,000/-is thus, ordered to be forfeited to the State of Himachai Pradesh. The proceedings u/s 446, Cr.P.C. are disposed of accordingly.

It is obvious that the bonds were forfeited u/s 446, Cr.P.C. on the ground that Shri Ghera appellant was absent when his appeal against his conviction u/s 61 of the Excise Act was called for hearing on 3-4-1986.

I am constrained to remark that the impugned order of the learned Sessions Judge and in fact his entire approach in dealing with the application u/s 389, Cr.P.C. filed by Shri Ghera and in initiating proceedings, u/s 446, Cr.P.C. reflect complete lack of application of judicial mind on his part. Admittedly, for his conviction u/s 61 of the Punjab Excise Act, Shri Ghera had been sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/-. In these circumstances, all that Shri Ghera is deemed to have prayed for in his application u/s 389, Cr.P.C. was to stay the recovery of the fine from him till the decision of his appeal. The Sessions Judge had undoubtedly jurisdiction to order suspension of the proceedings for the recovery of the fine during the pendency of the appeal. This is clear from the plain language of Section 389, Cr.P.C. which confers a discretionary jurisdiction on the appellate Court to suspend the execution of the sentence during the pendency of the appeal. The expression ''sentence'', of course, means not only substantive sentence of imprisonment but also includes sentence of fine. Though the language of Section 389, Cr.P.C. in terms of, is silent on the point, the appellate court while ordering suspension of sentence may impose suitable conditions, as may be justified on the facts of each case, in order to ensure that the sentence which may ultimately be imposed on the appellant as a result of the appeal, can be executed without any difficulty. These conditions, however, cannot be imposed in an arbitrary manner and must have some bearing on the object sought to be achieved. In the case of the instant type where the sentence is that of fine only, the only legitimate condition that could be imposed by the court while granting the prayer for suspension of sentence of fine could be to call upon the appellant to furnish a suitable security which could ensure the deposit of fine which may ultimately be imposed on the appellant as a result of the decision of the appeal. He certainly could not be asked to enter into a bail bond for his personal presence on each hearing fixed in the appeal. There is no law which enjoins that an appellant in a criminal appeal must be personally present on each hearing of the appeal. All that the law requires is that the appellate court while hearing the appeal should give an advance notice about the date and place of hearing to the appellant and in case he cares to put in appearance then to afford him an opportunity of being heard. In case the appellant chooses not to appear despite notice, the appellate court can proceed to dispose of the appeal on merits without hearing the appellant. It has no power to enforce personal present of the appellant by issue of warrants or otherwise especially in a case where the sentence imposed on him is of fine only. The order of the learned Sessions Judge passed on the application u/s 389, Cr.P.C. calling upon the appellant to furnish a bail bond and a surety bond for his appearance was thus illegal and if I may say so, without jurisdiction.

Looking from another angle, by furnishing the bonds in the language in which they exist, Ghera appellant had undertaken to appear at the hearing of the appeal as and when required by the court and similarly his surety, Smt Kamla, the other appellant had undertaken to produce Shri Ghera before the appellate court as and when ordered by that court. There is nothing on record to show if on any hearing, the appellate court directed the personal presence of Shri Ghera The record shows that after the appeal was admitted on 11-10-1985 it was adjourned to 5-12-1985 for which notice was directed to be issued to the State. On 5-12-1985 the matter was adjourned to 3-1-1986 as the record of the trial court had not been received. This adjournment was granted in the presence of Shri P. C. Sharma, counsel for the appellant, and the P. P. for the State. On 3-1-1986 the case was again adjourned to 3-4-1986 without recording any reason. The fact, however, remains that while adjourning the case on 3-1-1986 to 3-4-1986 and which adjournment was ordered in the presence of Shri P. C. Sharma counsel for the appellant, no direction was given that the appellant should come present in person on 3-4-1986. In these circumstances, when Ghera appellant had not been directed to appear in person before the appellate court on 3-4-1986, the order recorded on that date by the learned Sessions Judge forfeiting the bond was undoubtedly unjustified and illegal.

The matter may be looked into from yet another angle. The learned Sessions Judge has undoubtedly invoked his jurisdiction u/s 446, Cr.P.C: for making the impugned order. Now a plain reading of the provision of Section 446 (1) of the Code would show that a bond of personal appearance within the contemplation of this provision must be a bond taken by the Court under some provision of the Code. Where taking of I the bond, the breach of which is complained of, cannot be supported by some or other provision of the Code, no action can be taken in respect of the forfeiture of such a bond u/s 446, Cr.P.C. In the instant case as already observed, no provision of the Code authorises an appellate court to obtain a bond for personal appearance from an appellant filing an appeal against the order of his conviction and sentence of fine. The bond for personal appearance taken by the court from the appellant was, thus, not under the Code and as such his jurisdiction u/s 446, Cr.P.C. could not be invoked by the Sessions Judge in forfeiting such a bond and calling upon the appellant to show cause why penalty thereof should not be paid.

The impugned order imposing penalty of Rs. 2000/- on each of the appellants as recorded by the Sessions Judge is, thus, not sustainable and is hereby quashed.