S.446 CrPC | Accused Must Be Given Opportunity Before Court Records Satisfaction As To Breach Of Bond: Jammu & Kashmir High Court
Stressing on the need to ensure fairness and due process in cases where breach of a bond under Section 446 CrPC is alleged, the Jammu and Kashmir and Ladakh High Court has said it is mandatory that the court issues a notice first, providing the accused an opportunity to explain any alleged breaches. If the court remains unsatisfied with the explanation provided by the accused, only then can...
Stressing on the need to ensure fairness and due process in cases where breach of a bond under Section 446 CrPC is alleged, the Jammu and Kashmir and Ladakh High Court has said it is mandatory that the court issues a notice first, providing the accused an opportunity to explain any alleged breaches.
If the court remains unsatisfied with the explanation provided by the accused, only then can it proceeds to record its satisfaction of such breach, it clarified.
A single bench of Justice Mohan Lal was hearing a plea through the medium of which the petitioner had invoked the inherent jurisdiction of the court under Section 482 CrPC seeking to quash trial court order whereby the application of the petitioner seeking release of cash security of ₹ 100000/- deposited for grant of interim bail was dismissed.
The petitioner's son was one of the accused in a criminal case pending before the Pr. Sessions Judge Samba, under sections 8/21/22/25/29 of the NDPS Act. The son of the petitioner had applied for interim bail for medical treatment, which was granted for 30 days on furnishing surety, personal bonds, and a cash security of ₹100,000.
The application for extension of interim bail remained pending, and after its dismissal, the son of the petitioner failed to appear in court, resulting in the issuance of warrants and subsequent arrest. The petitioner filed an application seeking release of the cash security, but it was dismissed by the Sessions Court.
Challenging the order of the trial court the petitioner argued that impugned order was passed in a casual and mechanical manner without proper consideration. The bail and personal bonds furnished by the petitioner remain intact, and there was no order for the forfeiture of the cash security.
The bail order lacked a provision stating automatic forfeiture of the cash security, and once the accused has appeared in court, the court cannot order forfeiture when the bail and personal bonds are still in effect, the petitioner contended.
In order to address the issue, the bench referred to a judgment of Madras High Court in Prapbakaran Vs. The State 2010 and observed that before recording such satisfaction that breach has been committed, the court is required to issue notice and after affording opportunity to offer any explanation, if the court is not satisfied with the said explanation offered by the accused, then the court has to record such satisfaction that the terms of the bond have been breached which alone signifies the forfeiture of bond.
While applying the said position of law the to the case at hand the bench noted that the impugned order rendered by the court of Pr. Sessions Judge Samba does not signify that the provisions of Section 446 of CrPC have been complied with full rigour and the court has recorded the grounds of such proof in regard to forfeiture of surety bond/ cash surety to pay the penalty of ₹ 100000/- or show cause why the penalty should not be paid by the accused, as no notice to the accused before forfeiture of the bond has been issued, thereby, principles of natural justice has been violated.
In view of the same, the court allowed the petition and set aside the impugned order which had resulted in the forfeiture of the petitioner's cash security.
The Trial Court has been directed to reconsider the petitioner's application after giving an opportunity to accused in accordance with the relevant laws governing the matter, the court concluded.
Case Title: Makhan Lal Vs UT of J&K
Citation: 2023 LiveLaw (JKL) 145
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