1. This rule was issued upon the District Magistrate of Bogra to show cause why an order passed under Section 514, Criminal P.C., and confirmed on appeal should not be set aside. The material facts are as follows : One Emarulla Sonar was committed to the Court of Session by a Magistrate of the first class of Bogra to take his trial under Section 307, Penal Code. The accused Emarulla Sonar applied to the Sessions Judge for bail pending the sessions trial. The learned Judge directed that he should be released on bail to the satisfaction of the committing Magistrate pending hearing of the formal application for bail. Accordingly a bond was executed by Emarulla Sonar with one surety to appear in the Court of the Deputy Magistrate when called upon. Subsequently, on 9th August 1941 the learned Sessions Judge of Pabna and Bogra heard the formal application for bail and rejected the same and he directed the Magistrate to take the necessary action for the appearance of the accused, Emarulla Sonar. Various dates were fixed for the appearance of the accused Emarulla Sonar and time was extended on more than one occasion on the prayer of the muktear appearing on behalf of the accused Emarulla Sonar. Ultimately on account of a statement made by the said muktear the learned Deputy Magistrate ordered the issue of a non-bailable warrant for the arrest of Emarulla Sonar. Proceedings were also taken against the surety under Section 514, Criminal P.C.
2. The Deputy Magistrate Mr. U.C. Banerjee directed that the whole amount of the bail of the surety be forfeited. On appeal to the District Magistrate in accordance with the provisions of Section 515, Criminal P.C., the learned Deputy Magistrate ordered that the amount of Rs. 200 only be forfeited. On behalf of the petitioner Mr. N.K. Basu has contended that the bond executed by the surety was for the appearance of the accused before the Court of Session and that therefore under Section 514, Criminal P.C., it was only the Court of Session which had jurisdiction to initiate proceedings for forfeiture of the bond. He has also argued that inasmuch as the surety undertook in his bond to produce the accused when called upon and as he had never been called upon to produce the accused there was no ground for forfeiture of the bond.
3. It is clear from the statement on the record and from the statement made by the learned Deputy Legal Remembrancer that no formal notice was given to the surety to produce the accused and so far as we can see no order of any kind was actually communicated to him to produce the accused on a particular day. The form of bond executed by him was an undertaking to produce the accused in the Court of the Deputy Magistrate or such other Court as the Deputy Magistrate might specify on being called 1 upon to do so. In our opinion, in the absence of any notice calling upon the surety to produce the accused, it cannot be said that the surety failed to perform the conditions of the bond. Consequently, there was no justification for forfeiture of the bond. In the result therefore the rule is made absolute. The order of the District Magistrate of Bogra forfeiting Rs. 200 of the bond is set aside. If any amount has been paid let it be refunded to the petitioner.
4. I agree.