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Jagannath Rout Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1975CriLJ1684
AppellantJagannath Rout
RespondentState of Orissa
Cases ReferredTarni Yadav v. The State
Excerpt:
.....is only on such proof that the bond can be forfeited. there is thus a clear distinction between a bond for appearance on one side and a bond for keeping the peace or for being of good behaviour on the other. but so far as a bond for appearance is concerned, the very fact that the accused has failed to appear in court on the date fixed is sufficient proof of the fact that the condition of the bond has been forfeited and no further proof is necessary. it is not disputed that on the date fixed, namely, 22-3-1973, the accused mahadeb behera for whom the petitioner stood surety failed to appear in court. the very fact that he proceeded to the second stage in directing issue of a notice to the petitioner to show cause why the bond amount shall not be realised from him shows beyond doubt that..........page 1186 thus:this provision shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause only then can the court proceed to recover the money, in the present case the appellant was not called upon to show cause why the penalty should not be paid. before a man can be penalised forms o law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore be quashed.in the passage quoted above, their lordships were clearly referring to the second stage of the proceeding, and as i have already pointed.....
Judgment:
ORDER

Patra, Ag. C.J.

1. This case raises a question regarding the interpretation of Section 514 of the Criminal Procedure Code. In G. R. Case No. 90 of 1971 on the file of the Munsif-Magistrate, Narsinghpur, Mahadeb Behera was one of the accused, While being released on bail, he had executed a bond for his appearance in Court on all subsequent dates of hearing. The petitioner Jagannath Raut was one of his sureties who had executed a like bond in favour of the Court undertaking to produce the accused in Court and in default to forfeit a sum of Rs. 200/- to Government. On 22-3-1973, which was one of the dates fixed for trial of the case, the accused Mahadeb Behera absented himself from Court. The Court thereupon directed notice to be issued to the bailor to show cause why the bond amount shall not be realised from him. On 24-3-1973, the petitioner Jagannath Raut appeared in Court in response to the notice issued to him and stated that his village is at some distance from the village of the accused and that therefore he was not aware as to why the latter did not appear in Court on the date fixed and prayed for a month's time to cause production of the accused in Court. The Magistrate held that the petitioner failed to show sufficient reason for not producing the accused on the date fixed and ordered that the petitioner should pay Rs. 200/- to Government. For realisation of this amount, he directed issue of a distress warrant against him.

2. Aggrieved by this order, the petitioner filed an appeal before the Additional District Magistrate (Judicial), Cuttack, wherein it was contended inter alia that due to the fact that the village of the accused is far off from his village he was unable to produce the accused on the date fixed, that when in response to the show cause notice he appeared in Court and asked for a month's time to produce the accused, the learned Magistrate erred in not allowing time as prayed for by him, and that in any case, when other courses were open to the Court to enforce attendance of the accused, the Magistrate was not justified in forfeiting the bond executed by the petitioner and in issuing a distress warrant against him for realisation of the amount. The Additional District Magistrate rejected all these contentions and dismissed the appeal. Hence this revision.

3. The grounds urged in the memorandum of appeal filed by the petitioner in the Court of the Additional District Magistrate were reiterated in the grounds of revision filed in this Court and none of these grounds is tenable in law. At the time of hearing, however, Mr. S. K, Mohanty, learned Counsel for the petitioner urged a new point, namely, that before forfeiting the bond executed by the petitioner, the learned Magistrate ought to have given him an opportunity to show cause why the bond should not be forfeited and inasmuch as this has not been done, the subsequent order passed by the learned Magistrate directing recovery of the amount from him is illegal,

4. Section 514, Criminal P. C. in so far as material reads thus:

514. Procedure on forfeiture of bond.- (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 Magitsrate 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 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 moveable property belonging to such person or his estate if he be dead.

xx xx xx x

These two sub-sections thus contemplate two different stages in the proceeding before the Magistrate. In the first stage, the Court has to satisfy itself that a bond has been forfeited which means that the condition imposed upon the executant of the bond and agreed to by him had been contravened, If the bond is for appearance of the accused in Court, as it is in this case, the fact that the accused had absented himself is sufficient to constitute a breach of the condition and therefore for the forfeiture of the bond. If, on the other hand, the bond is for keeping peace or being of good behaviour, the person who alleges that the person bound under the bond has infringed the condition laid upon him, he must furnish proof to the satisfaction of the Court that there has been such infringement It is only on such proof that the bond can be forfeited. There is thus a clear distinction between a bond for appearance on one side and a bond for keeping the peace or for being of good behaviour on the other. Doubtless in both the cases, it has to be proved to the satisfaction of the Court that there has been a forfeiture of the condition of the bond and the Court has also to record the grounds of such proof. But so far as a bond for appearance is concerned, the very fact that the accused has failed to appear in Court on the date fixed is sufficient proof of the fact that the condition of the bond has been forfeited and no further proof is necessary. This is exactly what has happened in this case. It is not disputed that on the date fixed, namely, 22-3-1973, the accused Mahadeb Behera for whom the petitioner stood surety failed to appear in Court. Consequently, there occurred a breach of the condition of the bond executed by the petitioner undertaking to cause the production of the accused on all dates of hearing. Doubtless, as I find from the record of the Magistrate, he has not expressly recorded his satisfaction that the bond has been forfeited that is only an irregularity which does not go to the root of the matter. The very fact that he proceeded to the second stage in directing issue of a notice to the petitioner to show cause why the bond amount shall not be realised from him shows beyond doubt that the Magistrate was satisfied that the bond had been forfeited. There is nothing in Sub-section (1) of Section 514 which requires the Court at that stage to give notice to the executant of the bond to show cause against forfeiture before the Magistrate reaches the satisfaction that the bond has been forfeited,

5. The second stage relates to the realisation of the forfeited bond amount. At this stage, two alternatives are open to the executant of the bond. He may either pay the amount mentioned in the bond and if this is done, no further proceeding is necessary. He may in the alternative show cause why the amount mentioned in the bond should not be paid by him. If he shows such cause, it has to be duly considered by the Magistrate and necessary orders passed. There is no dispute that a show cause notice was issued to the petitioner and that he appeared in Court and showed cause. That was duly considered by the Magistrate and it is thereafter that he passed the impugned order. No exception therefore can be taken against the order passed by the learned Magistrate.

6. Considerable reliance is placed by the learned Counsel for the petitioner on a decision of the Supreme Court in Ghulam Mehdi v. State of Rajasthan AIR 1960 SC 1185 : 1960 Cri LJ 1527. The question that arose for consideration in that case was whether a notice had to be given to the sureties to show cause why the penalty should not be paid. After referring to Sub-sections (1) and (2) of Section 514, Criminal P. C. their Lordships stated at page 1186 thus:

This provision shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause only then can the Court proceed to recover the money, In the present case the appellant was not called upon to show cause why the penalty should not be paid. Before a man can be penalised forms o law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore be quashed.

In the passage quoted above, their Lordships were clearly referring to the second stage of the proceeding, and as I have already pointed out, such a notice has been issued in this case, Nowhere have their Lordships stated that at the first stage, that is, before forfeiting the bond executed for the appearance of the accused, and in a case where admittedly the accused has not appeared, the Court is bound to give a notice to the surety to show cause why the bond should not be forfeited. The bond executed being one for causing appearance of the accused and as admittedly there was no appearance of the accused, there was automatic contravention of the condition imposed upon the executant of the bond involving forfeiture thereof. It is not understood what further cause the surety could show at that stage. It was argued that had a notice been issued to the surety before the bond was forfeited, he could come and urged that non-appearance of the accused was due to circumstances beyond his control, That is a plea which the surety can urge at the second stage when he is called upon to show cause why he should not pay the penalty. The petitioner was given such an opportunity in this case.

7. The petitioner next relied upon a decision of the Patna High Court in Zulmi Kahar v. Emperor AIR 1929 Pat 843 where Fazl Ali, J. (as he then was) referring to Section 514(1) Criminal P. C. stated that the proper course for a Magistrate proceeding to pass an order under Section 514(1) is to come to a finding based on some evidence that the bail bona 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. Very shortly thereafter when a similar case came up before Macpherson, J. another learned Judge of the Patna High Court in Rajbansi Bhagat v. Emperor AIR 1929 Pat 658, His Lordship observed:

There is a palpable distinction between bonds which are not and those which are for appearance before a Court. Proof other than is directly before the Court in its own record is required in the former and not in the latter. Where the Court had before it the order for bail, the bail bond and the fact that the petitioners did not produce the accused, the provisions of Section 514(1) were substantially complied with and the High Court would not be justified in interfering in revision where there was no possible prejudice on the ground that the proceedings of the Sessions Judge under Section 514 were without jurisdiction as he had before him neither any proof that the bail-bond had beep forfeited nor did he record the grounds of such proof before he called upon the petitioners to show cause why the penalty of the bond should not be paid.

He distinguished the earlier decision of Fazl Ali, J. in AIR 1929 Pat 643 on the ground that when in that case the accused failed to appear, his mother filed a petition stating that her son was unable to attend as he was suffering from fever and the Magistrate took action forthwith without any inquiry into the allegation and when owing, it was alleged, to illness the surety failed to appear to show cause why the bond should not be forfeited, at once made an order of forfeiture.

8. In a subsequent Bench decision of that Court in Tarni Yadav v. The State AIR 1962 Pat 431 : (1962) 2 Cri LJ 627, the learned Judges dissented from the view earlier expressed by Fazl Ali, J. in AIR 1929 Pat. 643 and accepted the view expressed by Macpherson, J. in AIR 1929 Pat 658. That Bench held that where a bond has been executed by a surety undertaking to cause the appearance of the accused in Court and on the date fixed the accused does not appear in Court, there is a contravention of the condition of the bond entailing forfeiture thereof and no further inquiry is either necessary or contemplated at that stage. The Magistrate can straightway issue a notice to the surety to show cause why the penalty mentioned in the bond should not be recovered from him and it is at that stage that the surety is entitled to put forth such plea as would be available to him. With great respect, the view taken by the Division Bench in AIR 1982 Pat 431 : (1962) 2 Cri LJ 827 appears to me to be the correct view. This view has also been accepted by my learned brother R. N. Misra, T. in Harish Chandra Pradhan V. State (1974) 1 Cut W. R. 356.

9. In the result, I find no merit in this petition which is accordingly dismissed.


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