In a recent ruling, the Kerala High Court emphasized that bail bonds cannot be cancelled after the transfer of a case without providing notice to the accused and their sureties. The court held that when a case is transferred to another court, the transferor court must issue a notice to the concerned parties, failing which the bail bonds cannot be revoked.
The judgment was delivered by Justice Bechu Kurian Thomas, who highlighted the importance of notifying the accused and sureties when a case is transferred. The court observed that when a case is transferred, especially when it is expedited from the next scheduled date, it is crucial for the transferor court to issue a notice or inform the accused and sureties about the transfer. Without such notice, the bail bonds cannot be cancelled. Additionally, if the accused fails to appear after the transfer, proceedings to forfeit the bond of the sureties should only be initiated if notice had been served on the surety. If the transferor court had not issued notice to the sureties, then at the very least, the transferee court must issue notice to the sureties before forfeiting the bond.
The petitioners in this case were accused numbers 2, 5, and 6 in a case pending before the Additional Sessions Court-I (Special Court) in Pathanamthitta, Kerala. They were charged with offenses under sections 304 and 308, read with Section 34 of the Indian Penal Code.
Initially, the case was pending before the Sessions Court in Pathanamthitta, but it was subsequently transferred to the Additional Sessions Court-I and then to the Additional Sessions Court-IV. The sessions judge, on their own initiative, expedited the case and transferred it to the Additional Sessions Court-I in Pathanamthitta, scheduling it for the same day.
The petitioners argued that their counsel was unaware of the case’s transfer. The counsel had been waiting before the Additional Sessions Court-IV, expecting the case to be called. However, upon realizing that the case had been transferred to the Additional Sessions Court-I, the counsel discovered that the bail bond of the petitioners had been forfeited due to their non-appearance, and a non-bailable warrant had been issued. Notice was also sent to the sureties.
Consequently, the petitioners filed an application before the Additional Sessions Court-I, seeking the cancellation of the bail bond forfeiture and the continuation of the sureties as per the executed bond. However, the court dismissed the application, noting that the counsel for accused 1 and 3 had appeared before the transferee court, implying that the counsel for accused 2, 5, and 6 should have been aware of the transfer.
Advocate V. Sethunath, representing the petitioners, argued that the failure to issue notice of the transfer to the concerned parties was legally improper.
The public prosecutor, Sreeja V., contended that the counsel could not claim ignorance of the transfer since the counsel for accused 1 and 3 were present in the transferred court.
In response, the court remarked that transferring a case to another court without notifying the parties concerned cannot prejudice any individual, particularly the petitioners. The court referred to Form No.37 of the Kerala Criminal Rules of Practice, which specifies that the transferor court must inform the accused and the sureties when a case is transferred. The court further noted that while notice to the counsel would suffice for the accused, notice to the sureties must be issued before bail bonds are forfeited and warrants are issued following a case transfer.
The court stressed that when the accused and sureties execute bail bonds under Section 441 of the Criminal Procedure Code, they are affirming that the accused will appear before a specific court. The execution of a bail bond refers to a particular court and includes subsequent transfers of the case. Therefore, when a case is transferred, it is essential for the court to ascertain whether the sureties were aware of the transfer before cancelling or forfeiting the bail bonds for the accused’s failure to appear.
In the present case, the court observed that no notice of the transfer had been issued to the accused, the sureties, or their counsel. Consequently, the court set aside the lower court’s order forfeiting the bail bond and issuing non-bailable warrants against the petitioners. The court also quashed the proceedings against the petitioners and the sureties, deeming them “an abuse of the process of the court.”
