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Criminal Revision No. 532 of 1960, decided on 16th June 1960.
‑Bond for appearance of accused before Court‑"Satisfaction" of Court, necessary for forfeiture of bond‑Bond addressed to one Special Judge‑Any other Special Judge of that place can order forfeiture.
Shamsuddin Sirkar v. Emperor I L R 30 Cal. 107 and Nil Kumar Chatterji v. The Crown 5 D L R 488 ref.
‑Practice‑Penalising surety for non‑appear ance of accused‑Principle stated.
The Court should regulate the imposition of penalty in cases of default from the point of view, not so much of assessing the guilt' of the sureties in terms of money, but with the object of maintaining the system. In its integrity. In other words, if leniency towards sureties became the general rule, the whole system of release of accused persons on ball might require to be re‑examined to ensure the proper progress of criminal cases. At the same time, it is obviously not necessary or desirable in the average case, that the Court should lean in the direction of severity, for this might lead to difficulties in production of sureties, having the effect of overcrowding the judicial lock‑ups and other attendant inconveniences.
Sardar Khan v. Crown P L D 1952 Lah. 645 rel.
A. M. Sayem with Ismailuddin Sarkar for Petitioners.
S. A. Maquith Chowdhury for the State.
This Rule is directed against the orders of Mr. A. B. M. M. Huq, Sessions Judge, Dinajpur dated 30th May 1960, forfeting the bail bond of the sureties and directing them to pay up the entire amounts of the bail bonds within thirty days of the order ; and order dated 6th July 1960, rejecting the prayer for three weeks' time and also rejecting the prayer for exempting the sureties from their liabilities under the bail bond and also directing the issue of distress warrant for realisation of the amount : and also against order dated 22nd July 1960, refusing recalling of distress warrant and rejecting the petition of the sureties praying for time.
2. The petition discloses that on 3rd November 1958, one Upendra Nath Das, a Clerk in the Office of the Revenue Deputy Collector, Dinajpur and another, namely, Mohiruddin appeared before Sessions Judge‑cum‑Senior Special Judge, Dinajpur to answer charges under sections 420/471/109 of the Pakistan Penal Code and prayed for bail. In the case of the accused Upendra Nath Das, the Senior Special Judge granted him bail for Rs. 5,000, with five sureties of Rs. 1,000 each.
3. The petitioners who are all Mukhtars along with another Mukhtar, namely, Babu Kamakhya Charan Chakrabarty came forward to stand surety for the said Upendra Nath Das under taking to produce him in the Court of the said learned Senior Special Judge on dates fixed by him.
4. Subsequently this case, namely, Special Case No. 13 of 1958 was transferred to the Court of Mr. A. S. Khan, Special Judge before whom no fresh bond was executed for the produc tion of the accused.
5. When the case came up for hearing before Mr. A. S. Khan, Special Judge on 22nd December 1959, on which date accused Mobiruddin Abroad appeared but Upendra Nath Das did not appear, the trial of the other accused proceeded leading to his acquittal.
6. On 22nd December 1959, the petitioners and the said Babu Kamakhya Charan Chakrabarty filed a petition before Mr. A. S. Khan, Special Judge stating therein that he could not find out the whereabouts of Upendra Nath Das who was reported to have died in India and praying for being exempted from producing him.
7. On 23rd December 1959, Mr. A. S. Khan without passing any order on the said petition himself directed the same to be place before the Senior Special Judge for orders.
8. It is alleged that in the beginning of May 1960, the petitioner No. 1 was shown an order passed by the Senior Special Judge directing the sureties to show cause by 10th May 1960. It is stated in the petition that no formal notice was issued directing them to show cause as required by the provisions of the Code of Criminal Procedure.
9. On 10th May 1960, petitioners Nos. 1, 2 and 3 filed a joint petition before the Senior Special Judge stating that accused Upendra Nath Das was reported to have died in India and they prayed for two month's time for the authenticity of the said report. The Special Judge allowed time till 30th May 1960 to show cause.
10. On 30th May 1960, the learned Senior Special Judge passed the following order :‑
"The sureties do not show any cause. The bail bonds are forfeited. The sureties are directed to pay up the entire amounts of the bail bonds within 30 days from this date. Put up on 6‑7‑60 for further orders."
On 30th June 1960, the petitioners filed another petition praying for exemption from the bail bond stating that accused Upendra Nath Das was dead.
11. On 6th July, 1960 petitioners Nos. 1 and 2 filed a petition before the Senior Special Judge praying for further three weeks' time stating that the other three sureties, that is, peti tioners 3 and 4 and Babu Kamakhya Charan Chakrabarty bad gone over to India for the purpose of ascertaining if Upendra Nath Das was really dead. The learned Senior Special Judge, however, rejected the petition and directed issue of distress warrant for realisation of the forfeited amount.
12, On 22nd July, 1960 the petition was filed before the learned Special Judge praying for recalling distress warrant and for time. This was also rejected.
13. It has been further stated in the petition that lately petitioner No. 1 has come to know that some time back Kiran Bala Dad, wife of Upendra Nath Das bad written to the Revenue Deputy Collector, Dinajpur under whom the latter used to serve that her husband had died and further, petitioner No. 1 went to that once and found that a letter dated 2nd January, 1960 had actually been received by that office from Kiran Bala Dasi praying for arrear dues of her deceased husband under their Docket receipt No. 186 in file collection No. 11/28/60, being S. L, No. 2.
14. Mr. A. M. Sayem, the learned Advocate appearing for the petitioners after placing the petition fully as above has urged ground No. 1 of the petition which is as follows:
"For that the petitioners having executed the bond to produce the accused before the learned Senior Special Judge on dates fixed by him the order passed by the learned Senior Special Judge forfeiting the bond for failure to produce the accused in the Court of Mr. A. S. Khan, Special Judge, on a date fixed by Mr. A. S. Khan, has been illegal and without jurisdiction".
Mr. Sayem has cited the decision in Shamsuddin Sirkar v. Emperor (I L R 30 Cal. 101). In that case a surety executed a bail‑bond guarantee ing that the person, for whom he stood surety, would appear at the Court of a Deputy Magistrate before whom the case was pending, and the accused failed to appear before the District Magistrate, to whose file the case had been transferred. It was held on those facts that there had been no breach of the conditions of the bail‑bond, and that the order forfeiting it under section 514 of the Criminal Procedure Code should he set aside.
15. Mr. Sayem has also relied on a Single Bench decision of this Court, namely, Nil Kumar Chatterjee and another v. The Crown ((1953) 5 D L R 488).
16. In that case the bond which was furnished by the sureties in the Court of the District Magistrate recited that the sureties undertook to produce the accused "before your honour". "Before your honour" was taken to mean before the District Magistrate and not before any other Court. The bond of the sureties, it was held, could not therefore be forfeited on the ground that they had not produced the accused before the Assistant Sessions Judge as they never undertook to produce them before him.
17. Coming to the bond itself we find that in the first part the accused Upendra Nath Das undertook as follows: ‑
"I shall answer by appearing in your Court on every date fixed."
18. On the second para. on the same leaf, the sureties under took as follows :‑
"We will make the accused present before your honour on every date."
19. The accused says in your Court', while the sureties say before your honour'. The accused undertook to be present In Court while the sureties undertook to make him present before his honour. It seems that "before his honour" as stated by the sureties could not but mean that they meant to undertake appearance of the accused before the Court. There was nothing personal about ft. I find further that the bond is headed "In tire Court of the Special Judge, Dinajpur". The bond being addressed to the Court of the Special Judge, Dinajpur the distinction of Senior Special Judge and Special Judge as sought to be made does not come in.
20. Mr. Sayem has argued that once the case was transfer red from one Special Judge to another and the sureties having failed to produce before the Second Judge, their bond could not be forfeited by the Senior Special Judge. The wordings of sub sections (1) and (2) of section 514 of the Code of Criminal Procedure are as follows: ‑
(1) "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 Presidency Magistrate (sac) or Magistrate of the First Class, car 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.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead."
21. The section seems to give option to the first Court and also to the second Court in which appearance was required to be made. In term of the first part, the Court taking the bond can forfeit for violation of bonds of any kind whereas if the bond is only for appearance before a Court, it is the satisfaction of that Court that is necessary. In the present case, the Second Judge Mr. A. S. Khan could himself have forfeited by reason of the failure of the sureties but forwarded the consideration of the matter to the Senior Special Judge who had taken the bond on the following terms". "As the bail bond in this case was granted by the Senior Special Judge, let this petition be put up before hint for order. The case do however proceed against the other accused Mahiruddin".
22. The Senior Special Judge passed the forfeiture order for non‑appearance before the Special Judge and not for non- appearance before the Second Special Judge as stated by Mr. Sayem. The bond having been addressed to the Special Judge.' Dinajpur, any Special Judge, Dinajpur could forfeit the same on satisfaction. Of the decisions relied on an examination of the facts, of the first one, namely, the Calcutta case shows that in that case the bond was addressed to the Court of the Deputy Magistrate mentioning the name also of the Deputy Magistrate. Here it is not so.
23. In the second case, the distance was too far, namely, from the Court of the District Magistrate to that of the Assistant Sessions Judge, and thereafter an appeal was preferred before the Sessions Judge. The Sessions Judge allowed the appeal, set aside the order of conviction arid sentence and sent back the case for re‑trial and allowed bail to the ac; used persons. The petitioners thereupon stood surety on behalf of the accused undertaking to produce the accused before the District Magistrate's Court when called upon to do so, but they failed to produce him before the Assistant Sessions Judge.
24. So far as the actual forfeiture order goes, Mr. Sayem has placed ground No. 2 of the petition which is as follows: ‑‑
"For that no notice having been served on the petitioners, on the prescribed form for showing cause and no proper opportunity having been given to the petitioners in that behalf, the order forfeiting the bond has been illegal and in violation of natural justice".
25. It appears that on 10th May 1960, three of the sureties were present In Court and in their presence they were given time till 30th May 1960, to show cause by 30th May 1960. The sureties did not show cause. The bail‑bond was, therefore, forfeited. Besides, the wordings of section do not call for, as pointed out by Mr. Maquith Chowdhury for the State showing cause before forfeiture order when the reasons are apparent on the record. What is needed is the satisfaction of the Court.
26. Mr. Sayem has next urged ground No. 3 of the petition which is as follows :‑
"For that by the order dated 10‑5‑60 the learned Senior Special Judge having given the sureties time till 30‑5‑60 to show cause, the order dated 30‑5‑60 forfeiting the bonds has become illegal and void."
Mr. Sayem's grievance is that while on 10th May i 960, time for twenty days was given till 30th May 1960, to show cause against forfeiture the learned Judge wrongly passed the order on 30th May 1960 which should have been passed on the expiry of the thirtieth day, that is, on the thirty‑first of May.
27. It appears that the sureties did not come forward with any petition till 30th June 1960, that is, nearly one month after . In that view the point does not seem to be of much substance.
28. Next ground urged by Mr. Sayem is ground No. 4 of the petition which is: "For that the petitioners ought to have been liven an opportunity of ascertaining and proving the death of the accused Upendra Nath Das."
29. It appears that the main accused has been absconding ever since 25th December 1959. As pointed out by Mr. Chowdhury ever since 10th June 1960, the petitioners have been trying to find our the truth. Mere allegation of the death of accused is not enough. They did not make any prayer for bringing evidence of death of accused Upendra. Mr. Sayem has, in his petition referred to a letter in the Docket of the Collector relating to the death but there was no reference to it before the Special Judge At any rate it was not sought to be proved as evidence of death.
30. Mr. Sayem has next urged ground No. 5 of the petition which is: "For that at any rate the penalty imposed on the sureties requiring deposit of the entire amounts of the bail‑bonds is unduly harsh."
31. The fact remains that the accused was a clerk in the Government Acquired Estate of Dinajpur and it could not be expected by the sureties that he would escape in the fashion he has done.
32. We have also to bear in mind the caution given by Cornelius, J. as he then was, in the decision in Sardar Khan v. Crown (P L D 1952 Lah. 645), in which it was held as follows: ‑
"Court should regulate the imposition of penalty in cases of default from the point of view, not so much of assessing the 'guilt' of the sureties in terms of money, but with the object of maintaining the system in its intergrity. In other words, if leniency towards sureties became the general rule, the whole system of release of accused persons on bail might require to be re‑examined to ensure the proper progress of criminal cases. And the same time, it is obviously not necessary or desirable in the average case, that the Court should lean in the direction of severity, for this might lead to difficulties in production of sureties, having the effect of overcrowding the judicial lock‑ups and other attendant inconveniences.
In this case the full amount of the bond (Rs. 5,000) was forfeited which was reduced to Rs. 1,000 on appeal, and, again to Rs. 250 on revision to the High Court."
We have to chose between being too hard and too liberal.
In that view the ends of justice may well be met if the penalty is reduced to Rs. 300 in the case of each petitioner.
The Rule is discharged with this modification of penalty as stated above. The order for stay of further proceedings is vacated.
S. B.
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