Judgment:
1. Though this matter has come up for hearing on the question of admission, since I find that it can be disposed of finally at this stage itself, I have heard the learned Counsel for the appellant and the learned HCGP for respondent and perused the records.
2. This is an appeal by surety. Appellant was the surety for accused No. 2 in S.C. 85/90 on the file of the Additional Sessions Judge, Shimoga. Since, at a particular stage of the proceeding, he failed to keep present the accused No. 2, a miscellaneous case was registered against him in Criminal Miscellaneous No. 292/95 and a show cause notice was issued. After the surety appeared and bearing him, the learned Sessions Judge passed the impugned order dated 2-8-1996 directing issue of a fine, levy warrant against the surety for recovery of the surety bond amounting to Rs. 5,000/-. Being aggrieved by the said order, surety has come up with this appeal.
3. Learned counsel for the appellant took me through the impugned order dated 2-8-1996 recorded in the order sheet itself by the learned Sessions Judge. It is not clear from the order whether the surety who was the respondent in the miscellaneous case, had filed his written objections or not. It is seen from the order that no opportunity was given to the respondent-surety to adduce his evidence in support of his objections. It appears from the order that he made some oral submissions.
4. Under Section 446 of Cr. P.C., surety bond can be forfeited only after the Court has satisfied that there is breach of the conditions in the bond and if he fails to show sufficient cause. In this regard, Section 446, sub-sections (1) and (2) may be seen. Section 446, sub-section (1) reads as follows :
'446. Procedure when bond has been forfeited : (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.'
Sub-section (2) reads as follows :
'(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code.'
5. By these provisions, it is clear that the Court must be satisfied that sufficient cause is not shown by the respondent-surety for not obeying the terms of the bond. It necessarily implies that an opportunity should be given to the surety to adduce his evidence in support of his stand taken in the proceeding. It appears, neither of these requirements have been complied with in this case. Firstly, the order is not clear as to whether the surety-respondent before the lower Court filed his written objections. Secondly, the order does not discloses that the surety was given an opportunity to examine himself and adduce such other evidence as may be necessary in support of his stand. I, therefore, find that the impugned order cannot be sustained. It has to be set aside and the matter has to be remanded for fresh enquiry and decision in accordance with law.
6. For the reasons aforesaid, the appeal is allowed. The impugned order is hereby set aside. The matter is remanded to the learned Additional Sessions Judge, Shimoga with a direction to take the case in Crl. Misc. No. 292/95 on his file, given an opportunity to the first respondent-Hiranyappa to file his written objections to the show cause notice and also an opportunity for him to examine himself and adduce such other evidence as he may feel necessary and after hearing both the parties to decide the matter afresh in accordance with law.
7. Appeal allowed.