H.C.P. Tripathi, J.
1. This revision is directed against an order of the learned Civil and Sessions Judge, Agra, forfeiting the surety-bonds furnished by the applicants and directing the amount of the bonds to be realised from them by way of penalty.
2. The applicants had stood sureties for one Pancham, who was being prosecuted in a criminal case before the Court of Session. On the dates fixed for the trial of the case Pancham did not turn up and notices were issued to the applicants to produce him before the Court. The applicants took several ad. journments for tracing him out, but ultimately failed to produce him. The learned Sessions Judge, therefore, by his impugned order held that their bonds be forfeited and directed the recovery of the amount from the applicants.
3. Learned counsel for the applicants has argued that the order of the learned Sessions Judge is unsustainable in law inasmuch as he had given opportunity to the applicants to show cause against the forfeiture of their bonds, but did not provide them an opportunity to show cause as to why the amount be not realised from them by way of penalty. There is some force in this contention.
4. Section 514 of the Code indicates that two steps are to be taken ; firstly, an order has to be passed forfeiting the bonds and secondly the sureties are to be served with a notice to show cause why the amount of the bond be not realised from them by way of penalty. In the instant case, the learned Sessions fudge has passed a single order forfeiting the bonds as well as directing its amount to be realised as penalty. This is irregular.
5. In the case of MON Mohan Chakravarti v. Emperor : AIR1928Cal261 , a Division Bench of the Calcutta High Court had held that :
'The provisions of Section 514, Criminal P. C., indicate that two steps are to be taken : firstly, it must be proved to the satisfaction of the Court that the bond has been forfeited ; whereupon the Court is to record the grounds of such proof ; secondly, the Court, on being satisfied as aforesaid, may call upon the person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid'.
It is no doubt true that in the present case before forfeiting the bonds, the learned Judge had given sufficient opportunity to the applicants to produce the accused or to show cause against their-forfeiture and the applicants had taken full advantage of that opportunity and it is also difficult to imagine that the applicants will be able to produce some more reasons than what they have already done in support of their case for not realising the amount by way of penalty, but, as has been held in the aforesaid Calcutta case, 'it is desirable that the provisions of the section should be observed'.
6. In the result, the revision is allowed, the order of the learned Sessions Judge forfeiting the bond is upheld but he is directed to give a fresh opportunity to the applicants to show cause as to why the amount of the bonds be not realised from them by way of penalty.