Whether u/s 514 CrPC it is within the domain of trial court to pass the orders of attachment and sale of immovable properties of surety?
As the provisions of Section 514 Cr.P.C has clearly imposed a restriction on the court to attach ‘Immovable Property’ while proceeding against surety therefore, the learned trial court had no legal justification to pass the order of attachment and sale of immoveable properties of surety .
A critical study of 514 CrPC makes it clear that there are certain stages to be crossed before the imposition of penalty and recovery thereof. To initiate the proceedings, as a first step, there must be a bond for appearance of accused or otherwise.
The bond submitted by a surety has a self imposed condition that is to pay the penalty in case the terms and conditions of the bond are violated or the accused makes default in appearance before the court.
The proceedings under Section 514 Cr.P.C start only when there is forfeiture of bond and not otherwise. It is thereafter, when a notice is required to be issued to the surety to show cause that why he/she may not be ordered to pay the penalty that means the amount recorded in the bond? Said notice has been provided as ‘Form-XLV’ in schedule V of Cr.P.C.
Subsequent to issuance of show cause notice, an opportunity has to be granted to the surety to submit his reply because there can be various bona fide reasons and eventualities that the accused made default in appearance before the court like he has been arrested in some other case or he is admitted in hospital because of some serious ailment. It is to be remembered that said opportunity has to be real, fair and reasonable. Therefore, if the court is satisfied from reply, the show cause notice can be withdrawn. However, if the surety fails to offer any sufficient cause, the court has to pass the order for imposition of penalty. As in this society people also stand surety on humanitarian grounds having no monitory interest or personal gain, so in that situation while penalizing the surety, it is within the discretion of the court to remit 4any portion of the penalty in terms of Section 514(v) Cr.P.C. While passing such order the court is also required to maintain balance between undue leniency and undue severity by showing generosity and benevolence.
It must not be skipped that before issuance of warrant of attachment, a chance must be given to the surety, if he desires to pay the penalty by providing him some reasonable time. Even the surety can be permitted to deposit the penalty in installments to be determined by the court keeping in view his financial condition.
It is thereafter, if surety fails to discharge the liability that the court can proceed to recover the penalty by issuing the warrant of attachment and not before that.
As a last resort, if penalty is not paid and cannot be recovered by attachment and sale, the surety shall be liable, by order of the court to imprisonment in the civil jail for a term which may extend to six months.
Sub-section (2) of Section 514 Cr.P.C speaks loud and clear that only ‘Moveable Property’ can be attached and directed to be sold. Under Section 4 Cr.P.C there is no definition provided for the words ‘Moveable’ or ‘Immoveable’. However Sub-section (2) says that ‘All words and expressions used herein and defined in the Pakistan Penal Code, and not hereinbefore defined, shall be deemed to have the meanings respectively attributed to them by that Code’.
As the provisions of Section 514 Cr.P.C has clearly imposed a restriction on the court to attach ‘Immovable Property’ while proceeding against surety therefore, the learned trial court had no legal justification to pass the order of attachment and sale of immoveable properties of surety . However, when Sub-sections (2) and (6) are read together an exception is found there.
The words ‘or his estate if he be dead’ does not mean that the court has unlimited powers. To exercise such authority and for passing the order of attachment of sale of the estate of surety it must be on the record that the bond was forfeited before the death of Surety as provided under Sub-section (6).
It is needless to comment that the word ‘estate’ used in Sub-section (2) includes the Immoveable Property.
1. Writ Petition No.19063 of 2021 (Riaz Hussain vs. Judge Anti Terrorism Court & 6 others)
2. Writ Petition No.19064 of 2021 (Ghulam Abbas vs. Judge Anti Terrorism Court & 6 others)
Decided on 25.01.2022
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