Bail Bond Cannot Be Cancelled After Transfer Of Case Without Issuing Notice To Accused And Sureties: Kerala High Court

The Kerala High Court recently held that when a court transfers a case to another court, the transferor court must issue notice to the accused and sureties without which bail bonds cannot be cancelled.

A single bench of Justice Bechu Kurian Thomas observed,

“When a case is transferred, that too after suo motu advancing it from the next posting date, it is imperative that the transferor court issues notice or intimates the transfer to the accused and the sureties. In the absence of such a notice to the accused and sureties, the bail bonds cannot be cancelled. If after transfer the accused fails to turn up, proceedings to forfeit the bond of the sureties ought to be resorted to only if notice had been served on the surety. If the transferor court had not issued notice to sureties, then, atleast the transferee court must issue notice to the sureties before forfeiting the bond.”

The Petitioners in this case were accused no. 2, 5 and 6 in a case pending before the Additional Sessions Court-I (Special Court), Pathanamthitta. They had been booked for offences sections 304 and 308 read with Section 34 of the Indian Penal Code.

Initially, the said case was pending before the Sessions Court, Pathanamthitta from where it was made over to the Additional Sessions Court-I and then to the Additional Sessions Court-IV. The sessions judge suo motu advanced the case and transferred it to Additional Sessions Court-I, Pathanamthitta posting it on very the same day.

Petitioners contended that their counsel was not aware of the transfer of the case. He was waiting before the Additional Sessions Court-IV for the case to be called and as it wasn’t called he checked the court proceedings and found out that the case was transferred to the Additional Sessions Court-I. The Additional Sessions Court-I forfeited the bail bond of the petitioners due to non-appearance of the counsel and non bailable warranted was issued. Notice was also issued to the sureties.

The petitioners filed an application before the Additional Sessions Court-I for cancelling the forfeiture of bail bond and continuance of the sureties as per the bond that was already executed. However, the court below dismissed the application. The court below was of the view that the counsel for accused 1 and 3 appeared before the transferee court and hence the counsel for accused 2,5 and 6 cannot contend that he was not aware of the transfer.

Adv. V Sethunath appearing for the petitioners argued that not issuing notice of the transfer to the parties concerned is legally improper.

Public Prosecutor Sreeja V contended that the counsel could not claim to be unaware of the transfer as the counsel for accused 1 and 3 were present in the transferred court.

“The act of the court in transferring the case to another court without intimating the transfer cannot prejudice any person much less the petitioners," the Court observed.

The Court referred to Form No.37 of the Kerala Criminal Rules of Practice which states that the transferor court must inform the accused and the sureties when a case has been transferred. The court observed that when it comes to the accused, notice to the counsel would be sufficient. But notice must be issued to sureties before bail bonds are forfeited and warrants are issued after the transfer of a case.

“When bail bonds are executed by the accused and the sureties under Section 441 of the Cr.P.C., they are affirming that the accused will appear and be produced without fail before a particular court. The execution of bail bond is with reference to a particular court and includes the court to which the case is subsequently transferred. When the case is transferred, in order to bind the sureties with the bond and before cancelling or forfeiting the bail bonds for failure of the accused to appear, it is incumbent upon the court to ascertain whether the sureties were aware about the transfer of court that took place, in between.”

The Court observed that in the said case no notice of transfer was issued to the accused, the sureties or the counsel. The Court accordingly set aside the order of the lower court forfeiting the bail bond and issuing non-bailable warrants against the petitioners. The Court also quashed the proceedings against the petitioners and the sureties terming it “an abuse of the process of the court.”

Case Title: Muhammed Abdulla Sha V State of Kerala

Citation: 2023 LiveLaw (Ker) 228

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