1. This Rule was issued by two of my learned brothers, calling upon the District Magistrate to show cause why the order passed should not be set aside on the first and second grounds stated in the petition.
2. The order referred to was dated the 9th April 1924, and was made by the learned Sessions Judge of Dacca, by which he forfeited the bail bond of the two petitioners, and directed the Sub-Divisional Magistrate to levy the amount due from the two sureties.
3. It appears that, on the 26th September 1923, one Ramizuddi was ordered by the Sub-Divisional Officer of Munshiganj to execute a security bond of Rs. 300 with two sureties of Rs. 300 each, to be of good behaviour for a period of two years in a proceeding under Section 110, Civil P.C. The record was forwarded to the learned Sessions Judge; and, in the meantime the Sub-Divisional Officer ordered that Ramizuddi should be detained in prison. On 4th October 1923, an application was made to the learned Judge for the release of Ramizuddi on bail : and, on 8th October 1923, the learned Judge made an order releasing Bamizuddi on his own bail of Rs. 200 with two sureties of Rs. 200 each; the surety bond was signed by the two petitioners who are mukhtears. The form of the bond which was executed was as follows:
We the undersigned sureties do hereby execute the surety bond and promise that we shall produce the accused in the above-mentioned case at the Sessions Court at Dacca whenever called upon to do so; and in default, we bind ourselves to forfeit to His Majesty the King Emperor the sum of two hundred rupees only.
4. Notice was given to the two petitioners on 4th February 1924 to produce Ramizuddi in the Sessions Court on 8th February 1924. That notice was not complied with, and Ramizuddi did not appear on that date, or on subsequent dates, to which the case was adjourned. The learned Judge instituted these proceedings on 26th March 1924, relying upon a report of the Sub-Divisional Officer to the effect that Ramizuddi was absconding. The order of the learned Judge which is referred to in para. 11 of the petition, was as follows:
Perused the report of S.D.O. of Munshiganj Issue notice on the sureties to show cause why the bail bond should not be forfeited for their failure to produce the accused before this Court. Fix 9th April 1924 for hearing.
5. On 9th April 1924, the muktears appeared and through their learned pleader showed cause why the bond should not be forfeited; and the ground upon which the learned pleader relied, as far as I can ascertain, was that the sureties thought that the accused would not have to be produced until the reference which had been made to the learned Judge was disposed of; that they had sent a letter to the address of Ramizuddi merely informing him as to the date of hearing and remained satisfied with that without making any serious efforts to find him. That is not the ground which was relied upon in this Court. The first ground of the petition to this Court was as follows:
That the learned Sessions Judge not having complied with the requirements of Section 514, Criminal P.C., and not having recorded or taken any evidence of forfeiture before calling upon your petitioners to show cause under that section, the proceedings of the said learned Judge and the order complained of are illegal, ultra vires and void.
6. Section 514(1) provides:
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 1st 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 so paid.
7. In my judgment the provisions of this section 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.
8. In my judgment the provisions as to the first step were complied with in this case. It appears that notice was given to the petitioners to show cause why the bail bond should not be forfeited. The petitioners appeared before the Sessions Judge to show cause. On that occasion it was admitted by them that they had executed the bond, and that they had received notice on 4th February to produce Ramizuddi on 8th February 1924 and the learned Judge expressed the opinion that a reasonable time had been allowed for the attendance of Ramizuddi. It does not appear whether the question as to the time allowed being sufficient and reasonable, was contested or not : If there is anything in this point it will be open to the petitioners to raise it on the further hearing which we propose to direct. The above mentioned facts were recorded by the learned Judge its his judgment and the fact that Ramizuddi has not appeared on 8th February or on subsequent days was of course known to the learned Judge himself.
9. The learned Judge found that no cause had been shown why the bond should not be forfeited. This finding was not strictly in the proper form; he should have found that the bond had been forfeited. In effect, however, his judgment amounted to a finding that it had been proved that the bond had been forfeited and there is no doubt that he recorded the grounds of such proof.
10. In accordance with the terms of Section 514, Criminal P.C., the learned Judge-should then have called upon the petitioners to pay the penalty of the bond or to show cause why it should not be paid. This step in the proceedings was not taken, although it appears that the petitioners, when showing cause against the forfeiture of the bond, presented arguments to the effect that they should not be called upon to pay the whole of the penalty specified in the bond. The learned Judge did not accept the argument and directed the Sub-Divisional Magistrate to levy the amount due from the petitioners.
11. I am not aware whether the petitioners will be able to produce any reasons, other than those already advanced, why the penalty should not be paid; but it is desirable that the provisions of the section should be observed, and the result, in my judgment, is that the Rule should be made absolute and the matter should be remanded in order that the learned Judge may call upon the petitioner to pay the penalty of the bond or to show cause why it should not be paid.
12. There should be no difficulty in the provisions of the Code in this respect being followed by the learned Judges and Magistrates in the Subordinate Courts, The provisions of Section 514 are clear, and the form 45 in Schedule 5 is given as a guide for the notice to a surety on the breach of a bond given for the appearance of a person before the Court.
13. A further point was taken, viz., that the bond did not specify the time and place in accordance with the provisions of Section 499, Criminal P.C.
14. The bond in this case was to the effect that
we shall produce (or cause to appear) the accused at the Sessions Court at Dacca whenever died upon to do so.
15. In this bond the place was specified and the time mentioned was 'whenever called upon to do so.'
16. I am not prepared to hold that this form is illegal so as to deprive the learned Judge of jurisdiction.
17. In some cases it may be necessary to use that form. At the same time in my judgment it is desirable to follow the words of the section and to prescribe in the bond not only the place but also the time at which the accused is to attend. This will obviate the necessity of giving further notice to the sureties to procure the attendance of the accused : and even if the case cannot be tried or taken up on the day specified in the bond and has to be adjourned, the bail can be renewed so as to make it available until the day of the adjourned hearing.
18. The Rule, therefore, is made absolute and the matter remanded to the learned Judge so that, if he thinks it necessary to proceed further with the matter, he may take the steps which are prescribed in Section 514, Criminal P.C., and which are indicated in our judgment.
19. I concur.