G.C. Das, J.
1. This is a petition by the second party against an order of the Additional District Magistrate, Cuttack, confirming the order of a Magistrate 1st Class, dated January 27, 1959. The Magistrate by his order forfeited the interim bond executed by the members of the 2nd party and issued distress warrants against them and directed the police to take them into custody for avoiding any breach of the peace.
2. The facts are rather short and simple. The Magistrate took cognizance of a case under section 107 of the Code of Criminal Procedure against the present petitioners and issued notice under section 112 on August 8, 1958. By that order the Magistrate required the petitioners to show cause why they should not be ordered to execute bonds of Rs. 100/- each with sureties for the like amount for a period of one year for keeping the peace. The petitioners appeared and showed cause on August 23, 1958. Subsequently on September 26, 1958 the Sub-divisional Magistrate of Cuttack called upon the petitioners to execute interim bonds for Rs. 100/- each with one surety of the like amount to keep peaee during the pendency of the enquiry under Sub-section (3) of Section 117 of the Cr. P.C.
The petitioners on September 19, 1958 had already shown cause against the order for execution of the interim bond and on September 29 they furnished the interim bonds to the satisfaction of the Magistrate. The Police submitted another report against the petitioners before the Sub-divisional Magistrate, Cuttack and requested him to forfeit the interim bonds since the petitioners had violated the terms of the said interim bond. The allegations were that between 26-7-58 and 4-8-58 the petitioner had committed six overt acts.
The petitioners also filed an application that the 1st party should also be bound down. It appears that no orders have yet been passed on that petition. I am not, however, concerned with that application in the present proceedings. The Magistrate it appears examined two witnesses on January 12, 1959 and they were cross-examined by the petitioners. In another application the petitioners wanted the Sub-Inspector of Police, Lalbag Police Station to be examined which the Magistrate refused. Thereafter it is stated that the petitioners wanted to adduce rebutting evidence to displace the evidence given on behalf of the first party 'n the ground that of the two witnesses examined Sankarsan Mohanty had categorically admitted that he was a professional witness for the Lalbag Police and the other witness Sudani Behcra also admitted that he was an interested person under the influence of the first party. In spite of these allegations, the Magistrate did not allow the petitioners to examine any witness on their behalf. Furthermore, the Magistrate was informed that the petitioners intend to file an application under Section 526(8) Cr. P. Code.
But in spite of this information, the Magistrate, at appears, proceeded with the case and eventually passed the order on January 27, 1959, forfeiting the bonds and issued distress warrants against them and directed the Police to take them into the custody. Against this order of the Magistrate the petitioners carried an appeal which was heard by the Additional District Magistrate, Cuttack, who by his order dated March 6, 1959, confirmed the order passed by the Magistrate on the ground that the order was lawful and that there was no illegality committed by the Magistrate. Against this order the present application has been filed in tris Court.
3. Mr. Ranjit Mohanty, learned counsel on behalf of the petitioners, contended that the order of the Magistrate is clearly wrong in law since he has violated the provisions of Section 514 of the Code of Criminal Procedure. Section 514 lays down the procedure for forfeiture of the bond and it states:
'(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 or Magistrate 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 prool, 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 warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead.'
4. A plain reading of Section 514 indicates that two steps must be taken by the Magistrate: (1) It must be proved to the satisiaction of the Court that the bond has been forfeited whereupon the Court has to record the grounds of such proof; and (2) 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.
There is no provision in Section 514 to take the accused persons to custody. All that sub-sec. (2) of Section 514 requires is that if sufficient cause is not shown and the penalty is not paid then the Court may issue a warrant for the attachment and sale of the movable property belonging to such person or his estate if he is dead. In support of his contention Mr. Mohanti relied upon a decision in Kishan Narayan Singh v. Emperor, AIR 1922 Pat. 242. In that case Adami, J. held that Section 514 lays down that it must be proved to the satisfaction of the court that the bond has been forfeited and that the Court shall record the grounds of such proof, and it is after such grounds have been recorded that the person bound by the bond may be called on to show cause why the amount should not be paid.
Where there has been a failure to carry out the express provisions of the law and the Deputy Magistrate acted without jurisdiction in failing to record the proof before he issued notice to show cause, the petitioners are entitled to have the proceedings set aside. This decision met with the approval of Fazl Ali, J. (as he then was) in the case of Zulmi Kahar v. Emperor, AIR 1929 Pat. 643 where he took the view that the proper course for a Magistrate proceeding to pass order under Section 514 (1) is to come to a finding based on some evidence that the bail-bond executed by the surety has been duly forfeited and then only to issue a notice to show cause why the penalty should not be realised From him.
There is another decision of the Patna High Court in Ram Bilas Sharma v. Emperor, AIR 1940 Pat 375 where Dhavle J. took the view that it is wrong to pass an order of forfeiture and to hold bailors to their bonds without calling upon them to show cause why the penalty should not be paid. The same view was taken by the Calcutta High Court in the case of Manmohan Chakravarti v. Emperor, AIR 1928 Cal 261. Sanderson, C.J. in that case held that the provisions of Section 514 indicate that two steps are to be taken first, 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. The decision has been followed by the East Punjab High Court in the case of Mt. Taro v. Emperor AIR 1949 EP 221.
5. The Government Advocate contended that the failure to give notice to the petitioners is an irregularity which is curable under Section 537 of the Cr. P. Code. In support of his contention, he sought to rely upon a decision of the Madhya Bharat High Court reported in Harbilag v. The State, AIR 1952 Madh-B 2. In that case Dixit. J. held that Section 514 (1) does not require the Court to issue notice to show cause why the bond should not be forfeited. Again, the issue of notice to show cause why the penalty of the bond should not be realised is discretionary and not mandatory. It cannot, therefore, be maintained that an order of forfeiture of the bond or the recovery of the penalty of the bond passed without giving notice to the surety is illegal.
The facts in that case are already distinguishable and with great respect to the learned Judge, I cannot persuade myself to follow the view taken by that Court. In the Patna decisions referred to above, their Lordships of the Patna High Court have taken the view that if the provisions of Section 514 of the Code of Criminal Procedure are not followed, it would amount to an illegality and not merely an irregularity. In my opinion, the Magistrate not having issued notice to the petitioners to show cause as to why the penalty should not be paid, has clearly violated the provisions of Section 514 which amounts to an illegality. Accordingly, the order passed by the Magistrate is bound to be set aside.
6. Mr. Chatterjee, learned counsel for the complainant, frankly conceded that the order directing issue of distress warrants straightaway is clearly wrong. As I have stated above, there is no provision in the Criminal Procedure Code for taking the petitioners into custody. All that Section 514 (2) requires is that in case the petitioners fail to pay the penalty, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property of the petitioners. Accordingly, I would set aside the order of the Magistrate dated January 27, 1959, and allow this petition.
It is, however, still open to the Magistrate, if he finds that there is imminence of the breach of the peace, to enquire again into the matter keeping strictly in view the procedure as laid down in Section 514 Cr. P.C. and allow opportunities to both parties to adduce evidence and pass his orders on hearing both parties. The Magistrate must be satisfied on the evidence on record that there are reasons for forfeiting the bond. After the order in writing is recorded by the Magistrate he must give notice to the petitioners if the bond is to be forfeited to show cause as to why it should not be forfeited. In case of failure to pay the penalty, he should proceed under Sub-section (2) of Section 514 of the Code of Cr. Procedure.
7. The Rule is made absolute.