Arun Monga, J
1. Petitioner/accused seeks quashing of an order dated 31.07.2024 passed by the learned Additional Sessions Judge, Sri Doongargarh, Churu, in Criminal Revision No.61/2016. The revisional court dismissed the revision and upheld the cognizance order dated 05.12.2012 passed by learned Judicial Magistrate, Sri Doongargarh, in Criminal Case No.443/20212 in connection with FIR No.228/2011, P.S. Sri Doongargarh, for the offences under Section 420 and 406 of IPC. Subsequently, the learned trial court vide orders dated 05.08.2024 & 31.08.2024, issued an arrest warrants against petitioner and ordered initiation of proceedings under Section 446 Cr.P.C. against his surety.
2. Heard and perused the case file as well as the order impugned herein.
3. Learned counsel for the petitioner states that earlier a negative report was rightly filed in favor of the petitioner by the Investigating Agency. However, upon the filing of the protest petition, the learned trial court did not accept the said negative final report and took cognizance of the alleged offenses under Sections 420 and 406 of the IPC, as claimed by the complainant. The said cognizance was challenged by the petitioner through a revision, which remained pending for more than 10 years and was finally dismissed on 31.07.2024. Following that order, on 05.08.2024 the learned trial court directly issued an arrest warrant against him without effecting service of summons and/or bailable warrants and fixed the next date as 31.08.2024. On the next date, fresh arrest warrant was again issued as service of the earlier could not be affected and also ordered the initiation of proceedings under Section 446 Cr.P.C. against his surety.
4. Be that as it may, learned counsel states that he is under instructions for not press the prayer qua quashing of order impugned, but he seeks converting of the Non-bailable warrant issued against petitioner in to bailable warrant.
5. Learned PP would support the impugned order passed by both the learned court below for the reasons stated therein.
6. I am of the view that matters of personal liberty ought not to be taken so mechanically as has been done by the learned trial court. Summoning the petitioner without effecting service of summons or bailable warrants, by directly issuing arrest warrants on a protest petition does not stand to justification, in the facts and circumstances of the case.
7. As regards the directions issued by the learned trial court to proceed against the sureties under Section 446 Cr.P.C., the same is also a serious procedural fallacy committed by the learned trial Magistrate and cannot be sustained. On this point as well, guidelines enunciated in a judgment titled Varinder Singh Vs. State of Punjab1, are relevant. For ready reference, same are reproduced hereinbelow:-
“9. In the light of the statutory provisions of sections 444 and 446 of the Code and, the observations recorded above, I am of the opinion that the following procedure and principles governing the discharge of a surety and when necessary, for forfeiting the bond and the further steps to be taken for imposing the penalty upon the surety need to be kept in mind by the courts :-
A. DISCHARGE OF SURETY
A.1 . Surety can seek discharge at any stage : An individual who has stood surety for someone released on bail has the right to apply to the Court to be discharged from his responsibilities. He can seek a complete discharge from the bond.
A.2. Warrant of Arrest for accused: Upon receiving the application from the surety, the Court will issue a warrant of arrest for the person concerned who was released on bail to be produced before the Court. A.3 Appearance of the bailed Person: Once the person concerned is brought before the Court through the warrant of arrest or otherwise appears, the Court shall direct the surety bond to be discharged.
A.4. Finding New Sureties: Once the Court orders the discharge of the bond for the surety, the person who was released on bail will be required to find other sufficient surety.
A.5. Consequences of Failure: If the person who was released on bail fails to find other sufficient surety as required, the Court may commit him to jail.
B. FOR FORFEITING THE SURETY BOND AND IMPOSING PENALTY
B.1 Forfeiture of bond and proof :- If a bond is executed for the appearance of an individual before a court or for the production of property and it is proven to the satisfaction of the court that the bond has been forfeited, the court must record the grounds for such proof. Similarly, if a bond is forfeited in any other context, the court must also record the grounds for forfeiture.
B.2 . Notice and penalty :- The court may then call upon the person who is bound by the bond (surety) to either pay the penalty specified in the bond or to show cause why the penalty should not be paid. If sufficient cause is not shown and the penalty is not paid, the court can take action to impose the penalty.
B.3 Discretionary Remission :- The court has the discretion to remit (reduce) a portion of the penalty and enforce payment only for the remaining amount, implying that forfeiture of the bond by itself does amount to imposition of the penalty and a specific order has to be passed for imposing penalty.
B.4 Civil imprisonment in default of payment of penalty If the penalty imposed is not paid or cannot be recovered, the surety may be liable for imprisonment in a civil jail for a period up to six months.
B.5. Surety's death :- If a surety to a bond dies before the bond is forfeited, his estate is relieved of any liability related to the bond.
B.6. Use of Conviction as evidence : - If a person who has provided security under section 106 or section 11 or section 360 of the Code is convicted of an offence the commission of which constitutes a breach of the conditions of his bond or of a bond executed in lieu of his bond under sectin 448 of the Code (for a minor), a certified copy of the court's judgment can be used as evidence against the surety. The court will presume that the offense was committed by the same person unless evidence to the contrary is provided.”
8. In light of the aforesaid, I am of the view that the impugned order 05.08.2024 read with dated 31.08.2024 directing the forfeiture of the bail-bonds of the petitioner accused and initiating proceedings against his surety under Section 446 Cr.P.C., ibid, do not stand the judicial scrutiny.
9. Resultantly, as an upshot of my discussion and in the light of judgment, ibid, the impugned orders dated 05.08.2024 and 31.08.2024, are set aside. The original bail bonds of the petitioner accused as well as bonds furnished by his sureties are restored. Trial to proceed further, in accordance with law.
10. Disposed of accordingly.
11. Pending application(s), if any, also stand disposed of.
