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Criminal Revision Application No. 53 of 1976 (with 54/76, 55/76, 56/76 and 57/76), decided on 31st January 1978. Criminal Procedure Code (Y of 1898)‑

‑‑ S. 514‑Security bond, forfeiture of‑Provisions of law existing in S. 514‑Mandatory non‑compliance whereof clearly operates to pre judice of affected person‑Magistrate recording no order as to forfeiture of security bond against petitioner‑Defect in observing procedure under S. 514, Cr. P. C., held, not a mere curable irregularhy‑Impugned order set aside, in circumstances.‑[Forfeiture of bond].

Sawan and another v. The State P L D 1965 Kar. 516 and Willayat Hussain v. The State P L D 1967 Kar. 826 ref.

Rustam Ali Mia Bhtdya v. The State P L D 1957 Dacca 467; Ghulam Haider v. Karim Bakhsh P L D 1963 S C 46 and Sawan and another v. The State P L D 1965 Kar. 516 ,fol.

Mohammad Ali Shaikh for Applicant.

Jalaluddin Buloch for the State.

Date of hearing ‑ 3lst.January, 1978.

There are five connected

revision applications under section 439, Cr. P. C. directed against the order of Additional District Magistrate and Deputy Commissioner (South), Karachi passed in appeal under section 515, Cr. P. C. arising from the orders of Additional City Magistrate, Court No. 12, Karachi, calling upon the surety to pay the full penalty on forfeiture of the surety bonds. These orders of Additional City Magistrate were maintained though the amount of penalty was reduced by the learned Additional District Magistrate to 50 % in each case.

The facts in brief are that the applicants Abdur Razzak and Dawood were sureties for the various accused. who had been sent up in five cases for offences under section 19 of the Money Lending Ordinance. The accused remained absent on several hearings and the learned Additional City Magistrate accordingly passed an order under section 514, Cr: P. C. calling upon the sureties to show cause why they should not be ordered to pay the amount of the bond as it has been forfeited due to the absence of the accused. The sureties requested for time and thereafter the learned Additional City Magistrate imposed the penalty to the extent of the full amount of the bond and he also directed issue of warrants for the recovery of the amount through S. H. O., Napier.

The sureties in these cases preferred appeals in the Court of Deputy Commissioner and Additional District Magistrate (South), Karachi. These appeals were disposed of by a common order dated 5th May, 1976, whereby the defective procedure adopted by the Additional City Magistrate was considered as a mere irregularity and not an illegality and the orders were therefore, maintained, though the amount of penalty was reduced to half in each case.

It has been argued by Mr. Mohammad Ali Shaikh that under sec tion 514, Cr. P. C. three stages are contemplated. In the first stage when a bond for appearance before a Court stands forfeited to the satisfaction of such Court, the Court shall record the grounds of such proof. That is to say, there has to be first an order regarding forfeiture of the bond on proof of absence of the accused. After this stage a notice is to be issued to the surety calling upon him to pay the penalty or to show cause why it should not be paid. After hearing the surety and considering the cause, if any, the Court has to pass an order imposing the penalty accordingly. The third stage arises when this penalty is to be recovered by coercive process. The Court has then to recover the amount by attachment and sale of movable property and if such movable property is outside the jurisdiction of the Magistrate, the warrant of attachment is to be forwarded to the District Magistrate and if in spite of it amount cannot be realised then the Magistrate has to issue a warrant for imprisonment of surety in Civil Jail for a term not exceeding six months. The procedure for this imprisonment is that provided in the Civil Procedure Code and a warrant of arrest cannot be issued and forwarded to the police.

In the present case, it has been pointed out that the learned Additional City Magistrate did not pass any formal order regarding forfeiture of the bond. He straightaway issued show‑cause notice to the sureties and thereafter imposed the full penalty according to each bond. The warrants against the sureties were sent to S. H. O., Napier Police Station and according to Mr. Shaikh there were arrest warrants.

Mr. Mahammad Ali Shaikh has cited two Sind decisions on the points. In Sawan and another v. The State (P L D 1965 Kar. 516) it was observed by Raymond, J., that it was plain from tlt perusal of the language of section 514, Cr. P. C. that it was incumbent on the Court to first declare the bond forfeited 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. If this procedure was not complied with then an order regarding imposition of penalty could not be maintained. , This decision was followed in a subsequent decision in the case of Willayat Hussain v. The State (P L D 1967 Kar. 826) by Kadir Nawaz Awan, J. It was observed by the learned Judge three stages were contemplated for a proceeding under section 514, Cr. P. C., firstly, a declaration of forfeiture, secondly the order for payment or to show cause, and thirdly steps for recovery of the amount. Declaration of forfeiture must be proved upon cogent grounds establishing to the satisfaction of the Court, that the forfeiture has taken place. It is not sufficient for the Court to state that such grounds exist but the Court should record such grounds. The Court must further be satisfied by issue of show‑cause notice, that the cause shown was not sufficient and thereafter Court could proceed to take steps for recovery of amount. Reliance was placed for the view on the decisions in P L D 1957 Dacca 467, P L D 1963 S C 46, P L D 1965 Kar. 516. In both the Sind cases the orders were set aside as non‑compliance with procedure was considered to be an illegality and not merely an irregularity curable under section 537, Cr. P. C.

‑‑ Mr. Jalaluddin Baloch appearing on behalf of the Advocate‑General admits the position that no orders were recorded by the Magistrate in respect of the forfeiture of the bonds. In fact, when an application was made for copy of the order of forfeiture, it was remarked that such order was not in existence on the file. Mr. Jalaluddin Baloch has, however, pointed out that according to the views of Patna and Peshawar High Courts, omission to record an order of forfeiture was not considered fatal to the recovery of the amount from the surety,. However, the provisions of la contained in section 514, Cr. P. C. are mandatory and their non‑compliance clearly operates to the prejudice of the persons concerned. The defect in observing the procedure, cannot, therefore, be considered as a mere irregularity.

In the result, the impugned orders of learned Deputy Commissioner and Additional District Magistrate (South), Karachi as well as the Additional City Magistrate, Court No. 12, Karachi are set aside and it is directed that the amounts, if any, recovered from the sureties may be refunded.

s. A. H. Petition allowed.

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