Nasim Ali, J.
1. The facts which give rise to this Rule are as follows:
2. One Bhudeb Mukherjee, Sub-Deputy Magistrate, was an accused in a case under Section 409, I.P.C., before the District Magistrate of Dacca. He was absconding. A non-bailable warrant was issued for his arrest on 28th February 1934. This was followed by proclamation and attachment issued on 22nd March 1934. He was arrested by the police on 3rd June 1934 in a house on Strand Road in Calcutta. On that date the police addressed a petition to the Additional District Magistrate of Alipore praying that the accused should be remanded to custody for being escorted to Dacca. The second Police Magistrate of Alipore, Mr. G.R. Mnkherjee, however released him on a bail on that date. The petitioners who have obtained this rule became surety for the appearance of Bhudeb before the District Magistrate of Dacca on 18th June 1934 and bound themselves in default thereof to forfeit the sum of Rs. 1,000 each of His Majesty the King-Emperor of India. On 9th June 1934 the proceedings before the Second Police Magistrate of Alipore were withdrawn by Sadar, Subdivisional Officer of Alipore, to his own file.
3. The learned Subdivisional Officer then cancelled the order for bail, issued a warrant for the arrest of the accused and also isssued notices on the sureties i.e., the petitioners, to produce the accused before him on 11th June 1934. This case after two adjournments was fixed for 18th June 1934 on which date a telegram was received from the District Magistrate of Dacca that the accused did not appear before that Court. On 23rd June 1934 the learned Subdivisional Officer drew up proceedings against the petitioners under Section 514, Criminal P. C, and asked them to show cause why their bail bonds should not be forfeited. The petitioners thereupon showed cause. The cause shown was not accepted and the learned Subdivisional Officer forfeited the entire amounts of the bonds. On appeal the learned Additional District Magistrate of Alipore held that the learned Subdivisional Officer had no jurisdiction to take action under Section 514, Criminal P.C., for failure of Bhudeb to appear on the due date before the District Magistrate of Dacca. He accordingly set aside the order of forfeiture of the Subdivisional Officer and directed a copy of his order to be sent to the District Magistrate of Dacca for his information on 21st August 1934.
4. On 17th September 1934 the District Magistrate of Dacca started proceedings under Section 514 and directed the petitioners to pay Rs. 3,000 (Rs. 1,000 each) or to show cause on or before 28th September 1934 why payment of the said sum should not be enforced against them. The petitioners thereupon showed cause on 28th September 1934. The main defences of the petitioners were: (1) that the Second Police Magistrate of Alipore, Mr. G.R. Mukherjee, had no jurisdiction to entertain the remand petition addressed to the Additional District Magistrate of Alipore. (2) that the Police Magistrate of Alipore had no jurisdiction to admit the accused Bhudeb to bail as the latter was arrested at Strand Road within the jurisdiction of the Chief Presidency Magistrate, Calcutta, (3) that the Subdivisional Officer of Alipore having cancelled the order for bail, the bail bonds became inoperative and consequently cannot be enforced under Section 514, Criminal P.C.
5. The learned District Magistrate however did not accept the defence and passed an order on 28th September 1934 directing each of the petitioners to pay Rs. 1,000 to the Crown. The petitioners thereupon obtained the present rule from this Court upon the District Magistrate of Dacca to show cause why the sentence passed on the petitioners should not be reduced on the ground that the order passed on the petitioners was too severe in view of the facts disclosed in the petition for revision filed in this Court. Under Section 514, 01. (5) the Court may at its discretion remit any portion of the penalty mentioned in a bail bond and enforce payment in part only. The section therefore gives a discretion to the Court but does not indicate what facts and circumstances are to be taken into consideration in the exercise of that discretion.
6. From the reported cases however it appears that the Court remitted portions of the penalty in cases: (a) where the accused had been subsequently arrested and the amount forfeited was excessive and the surety was unable to pay: see Jora Singh y. Emperor 1933 Lah 42 (b) where the surety did not act irresponsibly and there had been no connivance or negligence on the part of the surety: see Probhudayal v. Emperor 1927 All 831. In this case it appears that the accused has been arrested subsequently. It further appears that the amount forfeited is excessive and the petitioners are liable to pay. The learned District Magistrate's reasons for enforcing the penalty in full are these:
They stood surety without knowing anything about Bhudeb Mukherjee but say that the Sub-Deputy Magistrate who granted the bail stated that Bhudeb Mukherjee was known to him and had property. A perusal of the police report dated 3rd June 1934 which was on the file would have disclosed the fact that Bhudeb Mukherjee had been absconding and that proclamation and attachment had been issued. The sureties did not even trouble to read this.
7. In other words the learned Magistrate was of opinion that the petitioners did not act in the matter with due care and caution. But it appears that they are junior Mukhtears and the Magistrate who released Bhudeb on bail informed the petitioners that the accused was a Sub-Deputy Magistrate and was known to him. He further told the petitioners that the accused was accidentally involved in a criminal case and asked the petitioners to stand sureties. Under the circumstances I am inclined to think that the mere fact that the petitioners did not look into the file would not go to indicate that they had been grossly negligent in the matter or that they acted irresponsibly. In view of the statements of Mr. G.R. Mukherji it cannot be said that the petitioners had any suspicion that the accused would abscond. In view of the peculiar facts and circumstances of the case I am of opinion that the ends of justice will be served if each of the petitioners be directed to pay Rs. 200 to the Crown within a month from this date failing which proper steps will be taken for realising the said amount from them.