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Criminal Revision Application No. 10 of 1966, decided on 8th April 1967.

S. 514(i)‑Forfeiture of surety bond‑Surety making every attempt to secure presence of accused before Court‑Sessions Judge not recording his grounds before ordering forfeiture of bond‑Order calling upon surety to pay Rs. 500 as forfeited amount of bond‑Held, not justified, in circumstances of case.

In re: Anant Shivaji (1907) 9 B L R 1285; The Maung v. The Emperor A I R 1937 Rang. 244; Gurmukhsingh v The Emperor (1926) 27 Cr. L J 848; Sanwan v. The State P L D 1965 Kar .516 ; Zulmi Khan v. Emperor A I R 1929 Pat. 643 and Dildar v. The State P L D 1963 S C 47 ref

Sajjad Ali Shah for Appellant.

I. Memon for the State.

Date of hearing: 20th April 1967.

This revision application is directed against two orders dated 12‑10‑65 and 25‑10‑65 passed by the learned Additional Sessions Judge, Karachi in Criminal Appeal No. 246/65 in which the appellant Kurt Anton Hupe had appealed against his conviction under section 14 of the Foreigners Act of 1946 and sentenced him to R. I. for one year by the S. D. M. Nazimabad Karachi by his judgment dated 8‑7‑65.

2. The applicant's case is that he had stood surety for Hupe and on the 6th of September filed an application under section 502, Cr.P.C. before the learned Additional Sessions Judge, stating that he desired to be discharged from the surety bonds he had executed on behalf of Hupe, who had been admitted in the Holy Family Hospital at Karachi. The same day, the learned Addi tional Sessions Judge ordered on this application that the accused, namely the Hupe be produced by the surety within 3 days.

3. In this revision application, the second Annexure is "B", another application dated 12‑10‑65 made by the surety that Hupe had remained absent on 20‑9‑65, that the surety had been ordered to produce Hupe and warrants for his arrest had been issued to the police which were returned unexecuted; and praying that fresh warrants for Hupe's arrest be given to him in hand, so that he may search for him and get him arrested with the help of the police, and for that purpose two months time be given to him. The order on this application states that the surety bond of the surety was forfeited, and he should pay Rs. 5,000 the amount of the bond within a week. The third Annexure is "C" which is a copy of the diary of the learned Additional Sessions Judge stating that the warrants had returned unexecuted, that they be repeated against Hupe, that the surety bond had been forfeited, and that he should pay the amount within a week and that the matter be called up again on the 1st of November. On the 25th of October 1965, according to Annexure "D" the surety applied that appli cant had been re‑arrested and was before the Court and that his documents in regard to the furnishing of the surety be kindly returned to him. The order of the learned Additional Sessions Judge stated that the documents be returned to the applicant, on condition that he pays Rs. 500 for the forfeiture bond to Government.

4. 1 have now heard Mr. Sajad Ali Shah for the applicant and the learned counsel has contended that the learned Additional Sessions Judge while forfeiting the surety bond of the applicant, ordered him to pay the amount at one stage of Rs. 5,000 and at a later stage of the sum of Rs. 500, without issuing a show‑cause notice to him, and reliance has been placed on the principle that when the surety has stood security for the appearance of an accused person, and subsequently applies for cancellation of the bail bond, it is not right when an application under section 502, Cr. P. C. has been made that he should be called upon to forfeit the bond and pay the amount of the bond or any part thereof, the proper procedure to adopt under this section being for the Magistrate to issue a warrant of arrest directing that the person or persons for whom the surety stands security be brought before him. This is the principle followed In re : Anant Shivaji ((1907) 9 B L R 1285), The Maung v. The Emperor (A I R 1937 Sang. 244) and Gurmukhsingh v. The Emperor ((1926) 27 Cr. L J 848).

5. 1 have before me the R and P of the case before the learned Additional Sessions Judge, and the diary of the proceeding relevant to the case of the applicant, does not support the applicant's case. It appears that when the applicant initially applied on the 6th of September on the application under section 502, Cr. P. C. stating that Hupe was in the Holy Family Hospital, the appellate Court ordered that the medical certificate be produced within three days, and that the matter be called up again on the 9th of September 1965, and that the appellant be vans produced by the surety as per orders on his application. On the rtiy, following hearing, namely the 9th of September Hupe's counsel Mr. Manzoor Mirza applied that Hupe was in the Holy Family Hospital and requested for time to produce the medical certificate time being allowed up to 13‑9‑65. On 13‑9‑65, on the same request of Hupe being in the hospital, time was requested up to 16‑9‑65, as the medical officer was on leave, and the matter was put off to 16‑9‑65. On 16‑9‑65, as the Presiding Judge was on leave, the matter was adjourned to 20‑9‑65 and a certificate was produced dated 17‑9‑65 from one Dr. A. Majeed Kaludi stating that Hupe was done with Neurasthenia and had been advised rest for 15 days. The following hearing was on the 20th of September, in the absence of Hupe and as the certificate was not of the Holy Family Hospital, non‑bailable warrant was ordered to issue with notice to the surety why surety bond should not be cancelled and the amount credited to Government. On the 28th of September, the warrants were returned unexecuted, so was the notice to the surety returned unserved. The non‑ bailabl, , warrants were ordered to be repeated, as also the notice to the applicant. On the 4th of Octobirr, Hupe was absent and the applicant was present. The applicant applied for further time to produce Hupe. The matter was ordered to be called up again on the 12th of October, when the warrant was again returned unexecuted, and ordered to be further repeated, the surety requesting for the warrant be given to him in hand. It is on this date on his application that the surety bond of the applicant was forfeited to the extent of Rs. 5,000 to be paid up within a week. Four days later, on 16‑10‑65 Hupe was produced before the learned Sessions, Judge and was remanded to custody, the hearing being fixed for 25‑10‑65 when Hupe's counsel stated that he had no instructions, and the appeal was reserved for judgment. On the same date, the surety applied for the return of his documents, and was ordered to pay Rs. 500 towards the forfeiture of his bond before the documents could be returned to him.

6. It is clear, therefore, that before ordering the forfeiture of the bond or any part of it, the learned Additional Sessions Judge had proceeded in terms of the procedure to be adopted on an application under section 502, Cr. P. Code and on the 20th of September, had issued notice to the applicant to show cause why his surety bond should not be forfeited, before he actually decided to do so on 12‑10‑65. The first contention therefore, of the learned counsel for the applicant fails.

7. Learned counsel next relied on Sanwan v. The State (P L D 1965 Kar. 516) where section 514(1), Cr. P. C. and the procedure to be adopted was discussed.

8. Section 514 (1), Cr. P. C. reads as follows :‑

"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."

My Learned brother, Raymond, J. observed that a perusal of the language of this section made it incumbent on the Court to first declare the bond forfeit and to record the grounds for such a finding before calling upon the surety to pay the penalty thereof or to show cause why it should not be paid. Reference was also made to Zulmi Khan v. Emperor (AIR 1929 PAT.643) where the, trial Court without properly investigating the matter assumed that the accused had deliberately absented himself from his Court, and issued notice to the surety to show cause why his bail bonds should not be forfeited, the Patna High Court pointing out that the trial Court should have come to a finding based on some evidence that the bail bond executed by the petitioner had been duly forfeited and then to issue a notice to show cause why the penalty should not be realised from him, and that in the case before Raymond, J. the learned Session Judge had made no inquiry as for the accused absenting himself from Court on the relevant date, and that there was no justification for the conclusion that the accused had absconded and without declaring the bail bonds forfeited, had promptly issued notice to the surety.

9. In the context of Dildar v. The State (PLD 1963 SC 47), the learned Additional Sessions Judge may be considered to have given due consideration in ordering that Rs. 500 out of a bond of Rs. 5,000 be forfeited to Government as on the face of it, the payment of this amount does not savour of undue severity, but I feel that consideration in this case should have been principally that the applicant at the very outset in his application dated 6‑9‑65 had persisted in stating that Hupe the appellant had been admitted in the Holy Family Hospital and that was the reason for his absence in the appellate proceedings, that Hupe is supported to some extent by the medical certificate of Dr. Kaludi dated 17‑9‑65, and the over‑riding circumstance is that within 4 days of the order dated 12‑10‑65 Hupe was arrested and produced by the Police and even on 12‑10‑65 the surety's case continued to be that time be given to him to secure Hupe, and for the purpose the warrant be given to him in hand to assist in getting Hupe arrested; A similar application was made on 16‑10‑65, when the applicant stated that Hupe had been arrested and seeking police help to have Hupe brought to Court. For these reasons, apart from the learned Additional Sessions Judge having fallen into an error in not recording his grounds before ordering forfeiture of the applicant's bond, it is clear to me that the applicant has made every attempt to secure the presence of Hupe before the appellate Court, and 'that on facts the order calling upon him to pay Rs. 500 as the forfeited amount of the bond was not justified.

10. For these reasons the revision application is allowed and the impugned order dated 25‑10‑65 set aside.

Petition allowed.

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