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Gangaram and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1957CriLJ235
AppellantGangaram and ors.
RespondentThe State
Cases ReferredNarain v. The State
Excerpt:
.....case it was held that if an order of forfeiture is passed without any notice to the person whose bond is forfeited, it amounts to a failure of justice. the purpose of this section is to give a chance to the accused to give an explanation and satisfy the court that there were good reasons for his absence, that the forfeiture was beyond his control and, therefore, the penalty should not be imposed upon him. 45 in the case of sureties because the arrest of the sureties cannot be made on account of the failure of the accused to make their appearance in the court and, therefore, it is only just that a notice should go to them on breach of a bond. in my opinion, if the accused is called upon in some manner by the court and if he gets an opportunity to show cause for not paying the penalty,..........case it was held thatif an order of forfeiture is passed without any notice to the person whose bond is forfeited, it amounts to a failure of justice. it is further necessary that it should be clear on the face of the record that he was so called upon...such a defect cannot be cured by section 537, cr. p. c.this view was followed in the latter case. the facts of both the said cases were however different because it appears that in neither of them the accused whose bonds were forfeited and on whom penalty was imposed, were called upon to pay the penalty or to show cause why it should not be paid.so far as i understand, the word 'notice' in this case was used in the sense of calling upon the defaulter to show cause because the word 'notice' does not appear in section 514, cr. p. c.,.....
Judgment:
ORDER

Dave, J.

1. This is an application in revision by Gangaram and thirty-three others against the order of the District Magistrate of Bhilwara, dated the 4th of February 1954.

2. The facts giving rise to it are that 70 persons were challenged by the police in the Court of the Extra Magistrate, Jahajpur for offences under Sections 148, 447, 379 and 395 of the Indian Penal Code. On the 4th of June 1952, all of them failed to appear in the trial court and, therefore, their personal bonds were forfeited and the court directed notice to be issued to them under Section 514 of the Criminal Procedure Code.

Thereafter they filed their reply in the court on 30th of June 1953. Some of them took the plea that they could not come to the court on account of two deaths in their village and they had to join the cremation ceremony. Others took the plea that they had to attend the court at Shahpura in another case and, therefore, they could not come.

The Magistrate found that twelve of them were required to attend the court at Shahpura and, therefore, no penalty was imposed upon them. The remaining 58 were ordered to pay Rs. 200/- each. Being dissatisfied with that order, they went in appeal to the District Magistrate, Bhilwara, but they were unsuccessful and hence, . they have come to this Court.

3. Learned Counsel for the petitioners has . urged that no notice was actually given to the petitioners although it was directed to be issued by the trial Court, that the provisions of Section 514, Cr. P. C., were not complied with and the order of the trial court imposing the penalty is therefore incorrect.

In support of his contention, he has referred to the case of - Poonam Chand v. The State' 1953 Raj LW 554 (A); and - 'Narain v. The State' 1955 Raj LW 19 (B). In the former case it was held that

if an order of forfeiture is passed without any notice to the person whose bond is forfeited, it amounts to a failure of justice. It is further necessary that it should be clear on the face of the record that he was so called upon...Such a defect cannot be cured by Section 537, Cr. P. C.

This view was followed in the latter case. The facts of both the said cases were however different because it appears that in neither of them the accused whose bonds were forfeited and on whom penalty was imposed, were called upon to pay the penalty or to show cause why it should not be paid.

So far as I understand, the word 'notice' in this case was used in the sense of calling upon the defaulter to show cause because the word 'notice' does not appear in Section 514, Cr. P. C., itself. Section 514, Cr. P. C., does not provide that any particular kind of formal notice should be given to the person whose bond has been forfeited. Relevant, part of the section runs as follows:

514. (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 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.

4. It is clear that when the bond is forfeited, it is the duty of the Court to record the grounds of the proof on which the forfeiture is based. After this, the Court may call upon the person bound by such bond to pay the penalty or to show cause why it should not be paid.

What is meant to say is that the person bound by the bond cannot insist upon a particular form of notice. All that is necessary is that he should be called upon and given a chance to show cause why he should not pay the penalty.

For instance, if a particular accused who forfeits his bond comes to the court after his re-arrest and the court calls upon him to show cause why he should not pay the penalty and if after recording the reasons given by the accused, the court imposes the penalty, the accused cannot take the stand that a notice in writing was not separately given to him.

The purpose of this section is to give a chance to the accused to give an explanation and satisfy the court that there were good reasons for his absence, that the forfeiture was beyond his control and, therefore, the penalty should not be Imposed upon him. The Code has prescribed form No. 45 in the case of sureties because the arrest of the sureties cannot be made on account of the failure of the accused to make their appearance in the court and, therefore, it is only just that a notice should go to them on breach of a bond.

In my opinion, if the accused is called upon in some manner by the court and if he gets an opportunity to show cause for not paying the penalty, then it cannot be said that there was a failure of justice. In such a case, the accused cannot take the plea with any justification that he was not given a formal notice and, therefore, the proceedings taken by the court are invalid.

In the present case also, it seems that although the trial court had directed the office to issue notice to the accused, the notices were, in fact, not issued to them. The subsequent order-sheet, however, shows that the petitioners made their appearance in the court and they wanted time to give an explanation for their absence on 4th of June 1952 when the bond was forfeited.

A number of adjournments were given to them for this purpose. Ultimately, it was on 30th of June 1953 that they submitted their written explanation giving reasons for their absence on 4th of June 1952. Thereafter, they produced two witnesses in support of their plea. The court did not believe both the witnesses and imposed the penalty on 58 persons, as mentioned above.

Thus the accused were called upon to show cause against the payment of penalty, they took adjournment after adjournment for months together. The court gave them full indulgence without good reasons. Ultimately, they filed their reply and even produced their evidence. The objection of notice in the face of these circumstances is quite untenable and is, therefore, dismissed.

5. Another objection raised by learned Counsel is that the bonds were obtained by the police and could not, therefore, be forfeited by the court. This objection is also not tenable because the bonds which were obtained by the police were for the attendance of the accused in the court of the Magistrate at Jahajpur.

Section 170 of the Criminal P, C., permits the officer incharge of the police station to take from the accused security for his appearance before the magistrate on a day fixed, and for his attendance from day to day before such magistrate until otherwise directed. The Code has also provided form No. 25 for a bond and a bail bond on an inquiry before the police officer.

The present bonds were in the same language. The accused had undertaken to present themselves in the court of the Magistrate, Jahajpur. According to Section 514. Cr. P, C,, when the bond is for appearance before a particular court, that court is empowered to forfeit the bond and, therefore, it cannot be said that the Extra Magistrate, Jahajpur, had no authority to forfeit the present bonds.

6. Lastly, it has been urged that the petitioners were very large in number and from their subsequent conduct, it appears that they did not mean to absent themselves from the court wantonly and the maximum penalty imposed upon them was not justified, under the circumstances. There seems good reason in the request of the learned advocate for reducing the amount of penalty. It appears that the maximum amount of the bond was Rs. 200/- and the court has imposed the full penalty, but it has not given convincing reasons for taking this extreme step. In the case of twelve persons, the trial court has found that they had gone to the court at Shahpura because their attendance was required there.

Others had therefore reasons to think, though wrongly, that they could also absent themselves with impunity. The petitioners are all village people and they seem to have absented themselves more because of their failure to realise their responsibility than to disregard the provisions of law. Learned Government Advocate also agrees that the circumstances do not justify the imposition of full penalty.

It further appears that the court had also given too much indulgence in changing the dates without giving good reasons, with the result that the petitioners had to put in appearance several times unnecessarily. It is not proper to adjourn the cases without serious reasons because that results in great harassment to the parties. Looking to all the circumstances, it seems reasonable that the penalty of each petitioner be reduced to Rs. 257- and the remaining amount should be remitted.

7. The petition is therefore, partly allowed. The penalty imposed upon the petitioners is reduced from Rs. 200/- to Rs. 25/- each. The remaining amount is remitted.


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