1. This is a rule against proceedings of the learned Chief Presidency Magistrate as a result of which Rs. 500 has been realised from the petitioner by a distress warrant. The petitioner stood surety for one Sris Chandra Banerjee who was a petitioner before this Court in respect of an order of conviction passed by the Presidency Magistrate. A rule was issued and was disposed of on 13-6-1945 the order being that the accused should surrender to his bail forthwith and serve out the remainder of his sentence. The order was communicated to the Chief Presidency Magistrate and received by him on 15-6-1945. He noted there 'Put up on 21-6-45' and issued a notice on the form of 'summons to an accused person' scribbled almost illegibly, but directing that the surety should produce the accused Sris Chandra Banerjee by 21-6-1945. On 21-61945 the learned Chief Presidency Magistrate recorded an order 'Notice served by posting. Forfeit Rs. 500 Issue D.W. for 3-7. Inform H.C.' We see that on the notice itself there is an endorsement by somebody for 'for C.C.I.' 'Netai by 20.6.' Then again below this : 'Sir, The notice served by posting at the address given' which is signed by somebody 'for C.C.I' and dated 19-6.... We presume from this that a constable by name Netai was given this notice for service and had reported to the Chief Court Inspector that he had served it by posting at the address given. The address given in the notice is the address given by the surety, the present petitioner in his application to staid surety. Alter this, in accordance with the order of 21-6 1945, a distress warrant was issued. This, as the record shows, was sent to the wrong thana, namely, to Section F so it was again returned and passed on to the correct thana, Section C and was promptly served and the amount realised without difficulty on 9-7-1945. According to the petitioner this date was the first that he had any knowledge of his. need to produce the accused in Court. On 13-7-1945, he in fact, although he had already paid the full penalty of the bond, produced the accused Banerjee who was sent to jail. He made an application to the learned Chief Presidency Magistrate to consider the matter of the full penalty of the bond, but this was rejected.
2. In his explanation the learned Magistrate states that this is the usual case that when this Court dismissed the appeal, the accused and the surety disappeared. Notice was served on the surety by posting as he was absent from the address given by him. The accused surrendered about three weeks after the date fixed. The amount was paid on 9-7-45 and the surety filed this application several months later. If the learned Chief Presidency Magistrate has any grievance in the Rule being issued so late, it may be pointed out that the High Court vacation intervened and that the delay was not the fault of the petitioner. We have already endeavoured to point out to the learned Chief Presidency Magistrate the provisions of Section 514, Criminal P.C., and the proper procedure to be followed in these matters. The actual procedure followed here has no relation to that required by the provisions of the Code. The first question for the Magistral to have considered was whether the bond of the accused and surety had been forfeited or not. The bond was forfeited when the accused failed to appear forthwith before him in accordance with the order of this Court passed on 13-6-1945. We may point out that the learned Magistrate is fully entitled to enforce these bonds against the accused themselves. His remedy is not confined only to the surety.
3. In the present case, we are not at all satisfied, as the learned Chief Presidency Magistrate seems to have been that there was any proper service of the notice issued by him on 21-6-1945. The learned Magistrate proceeded as though the failure for the surety to produce the accused on the date fixed in that notice amounted to a forfeiture of the bond in question. We have already pointed out that the bond is forfeited when the accused tails to surrender forthwith. So far as the surely is concerned, he is then to he called upon to show cause why he should not pay the penalty of the bond (cf. form XLV Notice to surety on breach of a bond. Schedule of Code of Criminal Procedure). Ordinarily if the surety appears in response to such a notice and succeeds in producing the accused within a reasonable time, he is entitled to some consideration in the matter of enforcement, though the Magistrate may quite reasonably enforce some part of the penalty for the actual failure of the accused to surrender forthwith and the consequent trouble caused to the Court. We think in the present case, having regard to the fact that the surety even after he had been made to pay the full amount of the bond still used his endeavours to produce the accused, some substantial remission of the penalty ought to be allowed. In our opinion in the present case in view of the fact that we are not satisfied that any proper notice was given to the surety before the distress warrant was served, it would be sufficient if that penalty is remitted to the extent of Rs. 490 (rupees four hundred and ninety). This amount will be refunded to the surety.