State vs Badusha and Munusamy

Arunachalam, J.—This is an appeal preferred by the State, represented by the learned Public Prosecutor challenging the order of the Judicial II Class Magistrate, Chengam, made on 24-8-1984 in M.C. No. 2 of 1984 forfeiting Rs. 30 only, out of the bonds executed by the Respondents for Rs. 1,000, which they had executed while offering themselves as sureties to one Karuppu Settu, who is said to be involved in a case of murder, and praying for the enhancement thereof. The bonds were executed by the Respondents on 29-10-1983.

A few facts may have to be narrated to dispose of this appeal. Karuppu Settu was an accused in Cr. No. 107 of 1983 on the file of the Inspector of Police, Chengam, which Crime had been registered for offences under Ss. 302 and 307, I.P.C, Karuppu Settu filed Crl. M P. No. 957 of 1983 on the file of the Principal Sessions Judge, North Arcot at Vellore. for bail. Court of Session North Arcot Division, directed the release of Karuppu Settu on bail, on his executing a personal bond for Rs. 1,000 with two sureties each for a like sum to the satisfaction of the Judicial Second Class Magistrate, Chengam. Pursuant to the order of bail the Respondents are stated to have executed surety bonds on 29-10-1963 before the Judicial Second Class Magistrate, each for a sum of Rs. 1,000, undertaking to produce before the Court the said Karuppu Settu, during every hearing.

Since Karuppu Settu absconded and the Respondents did not produce him before the Court, the trial Magistrate took action u/s 446 , Crl. P.C. The trial Magistrate forfeited the bonds executed by the Respondents on the non appearance of Karuppu Settu and called upon the respondents to pay penalty thereof or to show cause why it should not be paid. This notice was issued to the respondent on 29-6-1984, in view of the absconding of Karuppu Settu, who was expected to appear before the Court of Session, North Arcot Division at Vellore, on 22-2-1984 and subsequently, the Respondents appeared before the committal Magistrate on 24-8-1984 and, when questioned as to why they should not be directed to pay penalty, they pleaded guilty and prayed for a lenient view on the ground that they were daily wage earners and there had been drought. The Judicial Second Class Magistrate, accepting their plea, forfeited Rs. 30 out of the bonds for Rs. 1,000 executed by each one of the Respondents, on the ground that they were poor agricultural labourers.

Thiru A.S. Chakravarthi, learned Counsel appearing for the State, submitted that the order of the trial Court imposing a grossly disproportionate penalty to the amount of bonds executed in a capital case cannot be sustained and the reason of poverty alone, if could be treated as a ground, may amount to a passport for sureties to execute bonds and walk out later with flea-bite penalties. While testing the sureties, it is incumbent on the Magistrate to carefully peruse the records regarding the solvency of sureties, for a later escape from their liability on the guise of poverty should not affect the cause of justice. He would also contend that in view of the non production of the accused in the murder case the trial had been stalled and imposing of petty penalties would indirectly help to encourage touts and professional sureties to hamper the progress of trial. Though a lenient view may be feasible in certain circumstances, it will be erroneous to mechanically release the sureties after imposing very nominal penalties, which ultimately does not serve the cause of justice.

I have heard Thiru C.S. Krishnamoorthy appearing on behalf of the Respondents.

There could be no doubt whatsoever that the bonds executed by the sureties will have to be en forced and any mechanical relaxation in this behalf will have the effect of inducing people to execute surety bonds without due sense of responsibility. We cannot also overlook the fact that the responsibility of the surety to secure the attendance of the accused is quite independent of the undertaking given by the accused himself to appear before the Court. Therefore, the liability to forfeiture of the bond executed by the surety is not contingent upon the execution and the liability to forfeiture of the personal bond entered into by the accused. The forfeiture of bond is intended to serve a larger purpose than the mere realisation of the amount undertaken to be paid under it. In a sense, the forfeiture may be a penalty, but in another sense it is not a penalty in the same sense as a fine imposed on a person on conviction for an offence. The liability under the bond of a surety, as stated earlier, can be reduced in proper cases. It must be on the basis of application of mind and the exercise of judicial discretion(sic) springs in after taking into account the multifarious circumstances, and a wooden approach will not ultimately serve the cause of justice. The penalty should bear some correlation to the circumstances of the case, nature of the offence, inconvenience caused to the court and the likelihood of the exertions that the State may have to put in, in re-apprehending the accused. The indigence and financial status of the sureties can weigh with the Court, but that alone cannot tilt the balance in favour of the sureties in a case of the type, under discussion. The sureties must be able to satisfy the Court that, inspite of their bona-fide efforts they had not been able to procure the attendance of the accused and till they would exert all their efforts for apprehending him. All these considerations had not even been thought of by the Judicial Second Class Magistrate, but, as a matter of fact, mechanical order had been made, which, on the face of it, cannot be sustained.

However, it has now been brought to my notice that the accused Karuppu Settu was apprehended subsequently, and the trial was proceeded with against him, in Sessions Case No. 98 of 1983 on the file of the Principal Sessions Judge, North Arcot District at Vellore. It is also stated that Karuppu Settu was convicted for the offence u/s 302. I.P.C. and sentenced to undergo life imprisonment. Now that the accused Karuppu Settu has been apprehended and the law has taken its course, at this distance of time I am not inclined to interfere with the order made by the Judicial Second Class Magistrate, Chengam, though I reiterate that the order does not deserve to be sustained in law and on facts. While holding that the order made by the enquiring Magistrate is not in consonance with law, I am not inclined, on the facts stated above, to enhance the amount of bond to be forfeited. With these observations, this appeal is dismissed.