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Criminal Revision Application No. 59 of 1982, decided on 17th May, 1983.

-- S. 514-Penal Code (XLV of 1860), S. 161-Prevention of Corruption Act (II of 1947), S. 5 (2)-Forfeiture of bond-Surety not called upon first to show cause why amount of forfeited bond should not be paid by him-Order of forfeiture, held, not fulfilling legal requirement and cannot be sustained.

Sanwan and another v. The State P L D 1965 (W. P.) Kar. 516; Muhammad Ajmal v. The State 1968 P Cr. L J 782 and The State v. Abdul Sattar 1976 P Cr. L J 474 ref.

Ghulam Kadir Jatoi for Applicant:

Amanullah Qureshi for the State.

Date of hearing: 12th May, 1983.

This Revision Application is directed against the Order of the special Judge, Anti-Corruption Sukkur dated 22nd December. 1982, by which he has forfeited the bail bond executed by the petitioner Muhammad Ali and has directed the latter to pay Rs. 20,000 the amount of bond. In the case of default of the payment movable property of the petitioner has been ordered to be attached.

2. The facts leading to the filing of the Revision Petition are that Petitioner Muhammad Ali stood surety for A. S. I. Muhammad Saleem against whom the case of corruption had been registered under section 161, P. P. C./section 5 (2) of the Prevention of Corruption Act, 1947, and investigation in the case was in progress. As the accused Muhammad Saleem did not respond to the investigation notice was served, on the surety to produce the accused in the Court of Special Judge. He however failed to produce the accused and requested for time for doing the needful. As is disclosed in the impugned order sufficient time was given to the surety to produce the accused by 23rd November 1982 but with no result. The explanation offered by him was not accepted by the learned Special Judge, who, therefore, passed the impugned order referred to above

.

3. Mr. Ghulam Qadir Jatoi who appeared on behalf of the petitioner took exception to the impugned order on legal grounds. It was contended by him that no order of forfeiture of the bond has been passed by the learned special Judge, before calling upon the accused to show cause why the amount of the bail bond should not be paid by him. In this connec tion the learned counsel has placed reliance on the following authori ties: -

(1) Sanwan and another v. The State P L D 1965 (W. P.) Kar. 516.

(2) Muhammad Ajmal v. The State 1968 P Cr. L J 782.

(3) The State v. Abdul Sattar 1976 P Cr. L J 474.

4. In order to appreciate the arguments of learned counsel for the petitioner, subsection (1) of section 514, Cr. P. C. which is relevant for disposal of the petition may be reproduced as under: -

"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 Magis trate 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."

5. The requirements of the above subsection were considered in the aforesaid cases. In the first case of Sanwan it was observed: -

"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 surety to pay the penalty thereof or to show cause why it should not be paid."

6. In the second case of Muhammad Ajmal reference was made to the case of Sanwan mentioned above beside the cases of Zulmi Khan v. Emperor (A I R 1929 Pat 643.) and Dildar v. The State (P L D 1963 S C 47) and it was held: -

"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 applicants bond, it is clear to me that the applicant has made every attempt to secure the presence of Hupe before 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."

In the third case of Abdul Sattar it was held: Admittedly, in this case no enquiry was made to ascertain as to whether the absence of Masood Noorani on 28th March, 1970 was due to circumstances beyond his control or he had actually absconded to avoid appearance before the Court. In the absence of such an enquiry the order imposing the penalty is patently illegal. It is also manifest from the record that the Court did not first declare the forfeiture of the bond nor recorded the grounds for finding that forefeiture of bonds was justified under law before issuing notice to the surety. The order whereby penalty was imposed is therefore, illegal on this score as well."

8. The ratio decidendi of the above authorities is that as soon as accused remains absent in violation of the bond executed, by him and his surety for his appearance, to begin with the Court, concerned will order forfeiture of the bond, giving reasons for such forfeiture. The next step that is to be taken by the Court is to call upon the person bound by such bond to pay the penalty thereof or show cause why it should not be paid. If instead of making payment of the amount of the forfeited bond, expla nation is furnished by the surety, the Court has to make a summary enquiry, and record its finding if the explanation should or should not be accepted.

9. In the instant case the learned Special Judge does not seem to have followed the procedure laid down-in section 514, Cr. P. C. No Order of forfeiture has first been passed before calling upon the surety to show cause why the amount of forfeited bond should not be paid by him: Thus the impugned order which does not fulfil the legal requirements as stated above cannot be sustained. The learned State counsel, Mr. Amanul lah Qureshi was also constrained to concede that he was unable to support the order of the learned Special Judge.

10. In view of the above, the Revision petition was accepted by short order dated 12th May, 1983, for reasons to be recorded separately. Above are the reasons for the- said Order.

M. Y. H. Petition accepted.

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