T.N.R. Tirumalpad, J.C.
1. This is a petition to revise the order of the learned District Magistrate in Criminal Ap peal No. 1 Order 1958, by which he confirmed the order of penalty passed against the petitioner by the E.A.C. in Misc. Case No. 18 Order 1958.
2. The facts which gave rise to this petition are as follows:
The Criminal Case--G. R. Case No. 405 Order 1954 out of which the Misc. Case No. 18 Order 1958 arose originated from a private complaint filed in June, 1954, against one Manir Ahamad and R. K. Amusana Singh, under Section 420 I. P. C. The case dragged on from June, 1954 to November, 1957 and underwent nearly 70 adjournments for one reason or other. For most of those hearings, both the accused who were on bail were present. It is found from a perusal of the order sheet that a few of those adjournments were necessitated by the absence of one or the other of the accused on the ground of illness. If a criminal case is dragged on in this fashion for a period of over 3-1/2 years, it is not surprising that one or the other accused would fall ill and would be unable to appear on some of the adjourned dates.
It happened Order 5-10-57 that the accused Manir Ahamad was absent on the ground of illness. Then Order 7-ll-57, the Court disqualified his bailor and directed fresh surety in a sum of Rs. 5,000/-. It was then that the petitioner herein stood surety and agreed to produce the accused Manir Ahamad before the Court on every date of hearing and on default to forfeit to the Government the sum of Rs. 5,000/-.
3. Subsequently, the case again under-went as many as 21 adjournments between 7-11-57 and 9-8-58, some of them being on the ground that the Magistrate was absent on casual leave; others being on the ground that the ''Prosecuting Sub-Inspector was absent and still some others because the other accused R. K. Amusana Singh was absent and the Head Constable had misled the Court with a faked report and action had to be taken against the said constable. The point to be noted is that during all the 21 hearings the accused Manir Ahamad was being produced by his bailor regularly for every hearing and the case did not have to undergo any adjourn-ment on the ground of the absence of Manir Ahamad.
4. Order 9-8-58, the case was posted for letting in defence evidence and on that date Manir Ahamad was absent and a petition was filed at 11-00 a.m. by one Md, Siddique, the son of the petitioner on behalf of Manir Ahmad stating that the latter was suffering due to a sudden attack of colic pain and as such he was quite unable to appear before the Court and that the bailor was also attending to the treatment of the said Manir Ahamad. The Court then ordered that the application filed by a 3rd party without a medical certificate be rejected and that non-bailable warrant should issue against the accused for 11-8-58 and notice to the bailor. Accordingly, a notice was issued to the petitioner stating that by the non-appearance of the accused Order 9-8-58 the bailor had forfeited the sum of Rs. 2,000/-and he was called upon to pay the said penalty or to show cause by 11-8-58 why payment of the said sum should not be enforced against him.
On 11-8-58, the accused was brought under arrest. The petitioner was also present. The Court then ordered that the bailor did not take any steps to produce the accused Order 9-8-58, that the petition for adjournment was filed by a 3rd party without any locus standi and that the bail bond has already been cancelled.
5. Order 11-8-58, the petitioner filed a petition before the Magistrate stating that he found Order 9-8- 58 that the accused was ill, that he was being treated by a Doctor and that the petitioner therefore caused his son to file a petition for adjournment at 1-30 p.m. Along with this petition he produced a medical certificate from a Doctor. This was his answer to the show cause notice.
6. Order 12-8-58, the Magistrate held an enquiry and examined the Doctor (who had given the certi ficate and who was produced by the petitioner) as P. W. 1. He also examined the Petition-Writer, who had written the bail bond as P. W. 2, to prove the bail bond and the chaprassi of the Court as P. W., 3 to prove that the accused as well as the bailor were absent Order 9-8-58. The bailor himself was not examined. The witness produced by the petitioner, namely, P. W. I would appear to have been examined by the Court and not by the bailor as witness on his side. No cross-examination of any of the witnesses is seen from the record.
After taking: this evidence, the Magistrate passed an order rejecting the explanation given by the bailor and stating that the facts mentioned in the bailor's petition were false and so he directed the petitioner to pay a penalty of Rs, 1,000/-. It is curious that though the Doctor was examined as P. W. 1 and stated that he treated Manir Ahamed Order 9-8-58 and 10-8-58 the Magistrate did not give any reason why he did not accept the evidence of the Doctor. The Magistrate's mind seems to have been obsessed with the fact that the case had to be adjourned on some occasions on account of the absence of one or the other of the accused on the hearing dates.
7. The petitioner then went on appeal to the District Magistrate. But the District Magistrate con firmed the order of the Lower Court on the ground that the bailor's explanation for not producing the accused Order 9-8-58 cannot be accepted as true, because if the accused had been treated by the Doctor (P. W. 1), Order 9-8-58, the medical certificate ought to have been filed in Court Order 9-8-58 itself. He further held that the accused had therefore shown every intention of defaulting with the help of the bailor and that, in any case, if the accused was ill it was the duty of the bailor to have appeared and explain ed the circumstance under which the accused was absent. Against that order the petitioner has come- in revision to this Court.
8. It was argued before me by the petitioner's Advocate that the Magistrate has not followed the provisions of Section 514, Cr. P.C., that before forfeit ing the bail bond Order 9-8-58, it was the duty of the Magistrate to have satisfied himself that the bond has been forfeited and to have recorded the grounds in proof of such forfeiture, that the evidence of the- witnesses namely, P. Ws. 2 and 3 in support of the forfeiture ought to have been taken by the Magis trate before issuing the notice to show cause why the penalty should not be paid, that the petitioner has not been afforded an opportunity to cross-examine- the witnesses and lastly that both the Magistrate and the Appellate Court have been influenced by the fact that the case had dragged on for 4 years which was not a reason to be taken into account when dealing with the laches of the bailor to produce the accused Order 9-8-58.
9. I am unable to agree with the petitioner that the Magistrate has not followed the provisions of Section 514 Cr. P.C. in forfeiting the bond. The fact that the accused defaulted in appearance Order 9-8-58 was a matter within the knowledge of the Magistrate. In the case of a bail bond for appearance before a Court no further proof regarding the forfeiture of the bond was at all necessary. In that sense, it was unneces- sary for the Magistrate to have even examined P. Ws. 2 and 3 Order 12-8-58 to prove that there has been forfeiture of the bond.
10. But I must say that the procedure adopted by the Magistrate Order 12-8-58 was not altogether cor rect. The enquiry on that date was not to prove the forfeiture under Section 514(1) Cr. P.C., but to find out whether sufficient cause has been shown by the bai lor under Section 514(2). The Doctor, who was produced by the bailor was really a witness for him and ought to have been examined on his behalf and if the Magistrate was not satisfied with the Doctor's evi dence, he ought to have been cross-examined by the Magistrate or by the Prosecutor, who was appearing in the criminal case. But instead doing so, the Magistrate examined the Doctor as P. W. 1 against the bailor. The evidence given by the Doctor was in support of the bailor, I do not find from the record that the bailor himself was examined, though the order of the District Magistrate in appeal would show that he was under that impression. I find only a petition filed by the bailor on record. If the bailor did not want to be examined the Magistrate ought to have recorded that fact.
11. It is clear therefore that the petitioner has not been given a reasonable opportunity to show cause against the imposing of the penalty and that there was no proper enquiry as contemplated under Section 514(2) Cr. P.C. It is necessary to lay down the procedure to be adopted under Section 514 Cr. P.C. in cases where the bail bond is for appearance before a Court. If on the date fixed, the bailor fails to produce in Court the person for whom he has en tered into the bond and makes no attempt to ex plain the non-appearance, it may be taken as suffi cient proof of the forfeiture of the bond. The Court shall record the grounds of such proof. It may then call upon the bailor either to pay the penalty thereof or to show cause why it should not be paid. In either case, the bailor will be entitled to show cause why he should not pay the penalty. The bur den will be on the bailor. But he should be given an opportunity to show sufficient cause by produc ing documents or calling witnesses, if necessary. On such evidence, the Court will decide whether suffi cient cause has been shown.
12. In the present case, the Magistrate has not followed the above procedure. When the Doctor, who was examined as P. W. 1 in support of the for feiture gave evidence in favour of the bailor stating that the accused was really ill, the Magistrate ought to have given some substantial reason for dis believing it. The fact that neither the accused nor the bailor got a medical certificate from the Doctor Order 9-8-58, was no reason at all for disbelieving the Doctor's evidence as he was not responsible for it.
I find myself unable to accept the finding of the District Magistrate on the evidence on record that the accused showed every intention of defaulting with the help of the bailor. I fail to see in what way the bailor could be interested in allowing the accused to commit default. The accused was certainly not absconding as he was available for arrest as seen from the record, at his place of residence Order 11-8-58, indicating, presumably that his non-appearance was on account of illness. The filing of a petition for adjournment on the ground of illness by the son of the bailor again supports that view.
13. It was no doubt the duty of the bailor to have appeared Order 9-8-58 and produced a medical certificate and asked for time to produce the accused. There has been some laches on his part. But the question is whether for such laches he should be penalised of this large sum of Rs. 1,000/-. If no petition for adjournment at all had been caused to be filed Order 9-8-58, one would have taken, a serious view of the bailor's default. We have also to take into account the fact that after this bailor stood surety for the accused Order 7-11-57, he has produced the accused in Court on all the 21 hearings that fol lowed.
It is clear from this that the bailor had every intention to discharge his duty properly and that on the date in question his inability was due to the illness of the accused. In this connection I cannot but point out that it is the inordinate delay in the disposal of criminal cases in the Magistrate's Court, that is, to a great extent, responsible for situations of this kind, When a simple criminal case like this, in which only 13 P. Ws. had to be examined and which normally ought to have been finished in not more than 3 months is unnecessarily dragged on for a period of more than 4 years and the accused persons are made to appear in Court for more than 90 hearings during that period with no hope of the case being taken up, it is not surprising that one Or the other of the accused persons who are after all human occasionally fall ill.
Both the Magistrate and the appellate Court tried to put the blame for the delay in this Case on the accused Manir Ahamad. But a perusal of the record has satisfied me that after the petitioner stood surety for Manir Ahamad, the latter was not responsible for a single adjournment. In any case, the delays prior to the bond given by the petitioner ought not to have been taken into account against the petitioner in deciding his liability.
14. The simple question in this case was whether the accused Manir Ahamad was unable to be present 9-8-58 on account of illness. If the peti tioner has proved that fact, then it must be taken that he has shown sufficient cause why he should not be penalised. In my opinion, the evidence of the Doctor (P. W. 1) clearly proved that fact. The evi dence of this Doctor has not been adverted to either by the Magistrate or by the appellate Court, This has vitiated the orders of both the lower Courts. This revision is allowed and the orders of the lower Courts directing the petitioner to pay the penalty of Rs. 1,000/- is vacated.