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Criminal Revision No. 169 of 1963, decided on 21st July 1964.
S. 514‑Forfeiture of surety bond‑Court first to declare bond forfeited and record grounds for such finding before issuing notice to surety‑Issue of notice to surety without first forfeiting his bond‑Disapproved Order of forfeiture set aside.
Zulmi Khan v. Emperor A I R 1929 Pat. 643 and Dildar and another v. The State P L D 1963 S C 47 ref.
S. Mazhar Ali for Applicants.
A. H. Memon for A. A.‑G. for the State.
Date of hearing: 14th July 1964.
This is a criminal revision application on behalf of the two applicants Sawan, son of Bahawal Khan and Jummo Khan, son of Ghulamali Khan and it is directed against an order of the Sessions Judge, Dadu, (Mr. A.G. Muhammadally) dated 16‑2‑1963 forfeiting the surety bonds of the two applicants and directing them to pay the sum of Rs. 1,000 each under the said bonds.
2. The facts giving rise to this matter are that on. 17‑3‑1962 the two applicants stood surety in the sum of Rs. 3,000 each for accused Dattu, son of Punhoon Leghari who was then being tried by the Sessions Judge, Dadu, for offences under sections 394/ 397, 307 and 304, P: P. C. This case proceeded against accused Dattu who attended the Court on each date of hearing including the last date of hearing namely 1‑2‑1963. The case was then put off for judgment to 2‑2‑1963 but on that day the accused Dattu failed to attend the Court. In his absence, his mother presented an application to the Sessions Judge that day stating that her son Dattu had the previous night left on cycle for Dadu but that he has failed to show up at Dadu Sessions Court. The mother further stated in this application that she did not know what could have happened to her son on his way to the Sessions Court at Dadu. The mother finally prayed for an adjournment so as to enable her to search for her son and produce him in Court. On this application dated 2‑2‑1963 the learned Sessions Judge passed the following order:‑
"Issue N. B. W. against accused
Dattu. Notice to his sureties."
The case was then adjourned to 16‑2‑1963.
3. On 16‑2‑1963 Mr. Asan Das, a Senior Advocate of Dadu presented an application on behalf of the two applicants/sureties who were then present in Court and bad also brought the accused Dattu with them. In this application the learned Advocate pointed out that the two applicants/sureties had stood surety for accused Dattu through kindness and benevolence and not for any monetary consideration. It was the mother of the accused who had brought the Holy Quran to the door of the two applicants and begged of them to stand surety for her son. It was also mentioned that accused Dattu had regularly attended every date of hearing in the Sessions Court from the time of his release on bail till the date of judgment. Finally, it was stated that the two applicants/sureties had done their very best to secure the accused and had brought him with themselves to Court on that day. It was, therefore, prayed that the notice issued to these two applicants may be discharged. On this application the learned District Judge passed the following order:-
"The accused absconded on the day when the judgment was to be pronounced. I, therefore, forfeit the bonds of the two sureties and direct that they should pay Rs. 1,000 each. I have taken a lenient view because they have subsequently produced the accused."
(Sd.) A. G. MOHAMMADALLY, Sessions Judge
Dadu, dated 16‑2‑1963."
4. It is as against this last order that the present revision application is directed. Mr. S. Mazharali, the learned Advocate appearing on behalf of the two applicants has raised two‑main contentions. He has contended, in the first place, that the learned Sessions Judge was unduly precipitate in jumping to the conclusion that the accused Dattu had absconded from his Court on 2‑2‑1963 without taking any evidence in that behalf, or holding any inquiry or trying to find out why the accused had stayed away from his Court on that day. The learned defence Advocate has argued, secondly, that the learned Sessions Judge has failed to comply with the express provisions of section 514, Cr. P. C. by directing the issue of notice to the sureties without first forfeiting their surety bonds.
5. Now, section 514(1) Criminal P. C., is in these words
"Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Magistrate of the First Class, or when the bond is for appearance before a Court, to the satisfaction of such Court, that such 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."
It is plain from a perusal of the language of this section that it is incumbent on a Court to first declare the bond forfeit and to record the grounds for such a finding before calling upon the A surety to pay the penalty thereof or to show cause why it should not be paid. 1n this case, the two orders of the learned Session Judge, dated 2‑2‑1963 and 16‑2‑1963 show that notice to the surety was issued on 2‑2‑1963 and that their bonds were declared forfeit on 16‑2‑1963. The learned Sessions Judge has clearly erred in this matter in directing the issue of notice to the sureties without first forfeiting their bonds. In this connection my attention was invited to the case of Zulmi Khan v. Emperor (A I R 1929 Pat. 643). In that case, the learned Magistrate without properly investigating the matter assumed that the accused had deliberately absented himself from his Court and issued notice to the surety/petitioner to show cause why the bail bond should not be forfeited and the penalty realized from him. It was pointed out by the Patna High Court in its judgment in this matter that‑
"In the light of the law as laid down in the cases to which I am referred, the proper course for the Magistrate should have been to come to a finding based on some evidence that the bail‑bond executed by the petitioner has been duly forfeited and then to issue a notice to show cause why the penalty should not be realized from him."
In the instant case, the learned Sessions Judge, Dadu, made no enquiry whatsoever as to the reason for the accused Dattu absenting himself from his Court on 2‑2‑1963. The mere absence of the accused from his Court on that day, despite the fact that the accused had regularly attended each and every prior date of hearing, led the Sessions Judge to conclude that the accused had absconded and without. declaring the bonds forfeit' he promptly issued notices to the sureties. In my view, this conduct of the Sessions Judge is not in strict compliance with the law as it stands, and therefore, such conduct cannot be approved or upheld by the High Court:
6. Mr. Mazharali has also invited my attention to a fairly recent decision of our Supreme Court in the case of Dildar and another v. The State (P L D 1963 S C 47). Here, too, Dildar and his colleague Ghulam Hussain who had stood surety for one Mir Jan an accused in the Court of the S. D. M. Old Town, Karachi, who had absconded were directed to pay the sum of Rs. 5,000 each being the amount of their respective surety bonds. Appeals carried by them against this order before the Additional District Magistrate, Sessions Court and a further revision before the High Court were all dismissed. Special leave to appeal was granted to them by a Division Bench of the Supreme Court and at the regular hearing of the matter their Lordships of the Supreme Court found a defect in the proceedings taken against Dildar and Ghulam Hussain in the Courts below, namely:‑
"No effort appears to have been made by the Courts below to enquire into the relevant matters affecting the degree of their responsibility."
Their Lordships explained in their judgment:---
"In dealing with cases of sureties who are in default, a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severeity, which might lead to an unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. In assessing to what extent the bond should be forfeited the Court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused and whether they have done their best to secure his attendance. These matters have not been enquired into by the Courts below. We have accordingly thought fit to question the two sureties ourselves on these points."
Now, in the instant case, it is apparent that the learned Sessions Judge, Dadu, has considered the degree of liability of the two applicants and because they have succeeded in producing the accused before him, he has taken a lenient view and has reduced the amount to be recovered from each of them from Rs. 3,000, the full amount of the surety bond, to Rs. 1,000 only. But, neverthe less, this learned Judge has erred in jumping to the conclusion that the accused Dattu has absconded from his Court on 2‑2‑1963 without making any 'enquiry or at all looking into the matter in spite of the application made before him that day by the mother of the accused Dattu. He has also erred in putting the cart before the horse and in directing the issue of notices to the two applicants/sureties on 2‑2‑1963 and in forfeiting their bonds subsequently on 16‑2‑1963.
7. Hence, in view of these errors committed by the learned Sessions Judge, I allow this revision application, set aside his order of 16‑2‑1963 and direct that the sum of Rs. 2,000 if paid by these two sureties be refunded to them.
Announced by me in open Court in the absence of Mr. Justice Raymond.
K.B.A. Petition accepted.
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