1. In this case a rule was issued calling upon the Magistrate; of the District to show cause why the order complained of in the petition should not be set aside or why in the alternative, a portion of the penalty should not be remitted on the grounds stated in the petition.
2. The applicant is stated in the petition to have stood surety for one Jodu Lal Sahu who may charged under Sections 193 and 471 of the Indian Penal Code and, as such surety to have executed a bond for appearance of Jodu Lal before the Court of the Sessions Judge of Mozaffarpore on the 18th of May 1909 at 6 a.m. to answer the charge against him and in default the petitioner bound himself to pay the sum of Rs. 50,000. Jodu Lal did not attend on the 18th of May in accordance with the terms of the bond, and proceedings wore, therefore, initiated with a view to have the bond forfeited and the amount of the forfeited money levied. An order has been made by the Deputy Magistrate that the bond of the surety be forfeited and that the full penalty be realized.
3. An objection is taken before us that the Deputy Magistrate had no jurisdiction to make this order and a perusal of Section 514 shows that this contention is well-founded. That section in its opening clause deals, first of all, with bonds generally and then with a bond for appearance before a Court. So far as the bonds generally were concerned, there is a provision that action may be taken by the Court by which the bond has been taken or by the Court of a Presidency Magistrate or a Magistrate of the first class. But in the case of a bond for appearance before a Court, the tribunal indicated is that Court and there is not other tribunal. Now, in this case, from the terms of the bond the appearance was to be before the Sessions Court and not before the Deputy Magistrate, and, therefore, it is clear that the Deputy Magistrate had no jurisdiction.
4. We have received a letter of explanation from the District Magistrate in which he suggests that the action taken by the Deputy Magistrate in the matter was under delegation of the Sessions Judge and by his order dated the 8th of May 1909, such delegation is justified by Section 516 of the Code of Criminal Procedure and the Deputy Magistrate's action in the matter was, therefore, not without jurisdiction. But that explanation shows the error into which the Magistrate and all concerned have fallen. Section 516 is only concerned with the power to direct levy of the amount due and not with the forfeiture which is a condition precedent to the levy. The procedure on forfeiture is defined by Section 514. The bond, I may mention in passing, has been drawn up carelessly, for the writer, whoever he was, failed to bring the body of the bond into conformity with the directions contained in the margin,
5. The result is that, on the ground I have indicated, this order of the Magistrate must be set aside and the Rule made absolute.
6. It is to be noted that though the accused failed to appear on the 18th of May still. owing to the efforts of sureties, his attendance was, in fact, secured by the 31st so that no great harm has been done.