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Dhanvir and ors. Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1975CriLJ1347
AppellantDhanvir and ors.
RespondentState and anr.
Cases ReferredBishnu Dalai v. The State
Excerpt:
- .....indicate, dhanvir and others were being prosecuted upon a complaint made by one arjan dass. the learned magistrate asked dhanvir and others to give security bonds for their appearance in court on 22-10-1971. however, on that date these three persons did not appear before the court and a notice was issued by the learned magistrate asking them to show cause why their bonds be not forfeited. on 16-11-1971 dhanvir and others appeared before the magistrate and showed cause against forfeiture but the learned magistrate did not find in their favour and not only forfeited the bonds but also directed that penalty be realized from them which he reduced to rs. 100/- in the case of each of them. dhanvir and others thereafter came in appeal before the learned district magistrate, mahasu and their.....
Judgment:
ORDER

D.B. Lal, J.

1. This revision petition is directed against the decision of the District Magistrate, Mahasu, in appeal under Section 515 of the Code of Criminal Procedure in a case under Section 514 of the Code of Criminal Procedure whereby the Magistrate has forfeited the security bonds of Dhanvir and others who were being prosecuted under Section 107 of the Code of Criminal Procedure. As the facts of the case indicate, Dhanvir and others were being prosecuted upon a complaint made by one Arjan Dass. The learned Magistrate asked Dhanvir and others to give security bonds for their appearance in Court on 22-10-1971. However, on that date these three persons did not appear before the Court and a notice was issued by the learned Magistrate asking them to show cause why their bonds be not forfeited. On 16-11-1971 Dhanvir and others appeared before the Magistrate and showed cause against forfeiture but the learned Magistrate did not find in their favour and not only forfeited the bonds but also directed that penalty be realized from them which he reduced to Rs. 100/- in the case of each of them. Dhanvir and others thereafter came in appeal before the learned District Magistrate, Mahasu and their main contention was that the learned Magistrate flagrantly abused the procedure prescribed under Section 514 and rather issued a notice to show cause why the bonds be not forfeited and thereafter straightway proceeded to make an order for the realization of penalty. The learned District Magistrate dismissed the appeal considering that the order of the learned Magistrate was proper and so he refused to interfere. Dhanvir and others have felt aggrieved of that decision and have come up in this revision. A perusal of Section 514 will make it abundantly clear that the Court has to be satisfied in the first instance that a bond for appearance was taken and that the said bond has been forfeited for which it shall record the grounds. The order as to forfeiture of bond, which is upon grounds to be recorded to the satisfaction of the Court, is almost automatic no sooner the condition of the bond is disregarded and the person fails to appear before the Court. It is only after such an order of forfeiture is made by the Court that a notice to show cause is to be issued to the surety either to pay the penalty or to show a sufficient cause why the penalty be not paid. Thereafter the Court has to consider the grounds made out by the surety in support of his case and after considering the case on merit, if the Court is dissatisfied with the reasons shown, an order is to be made for the realization of the penalty. In the instant case this procedure has not been followed by the learned Magistrate. It is an irregularity to pass a single order forfeiting a surety bond and directing its amount to be realized as penalty. Under Section 514, as I have stated before, two steps are essential:

(i) an order has to be passed forfeiting the bond

(ii) notice has to be served on the surety to show cause why the amount be not realized from him by way of penalty.

It has been held in Bishnu Dalai v. The State AIR 1960 Orissa 108 : 1960 Cri LJ 842 that if the provisions of Section 514 are not followed it would amount to an illegality and not merely an irregularity. In the present case the Magistrate issued a notice to show cause as to why the bonds be not forfeited. Such a notice is not even contemplated in Section 514. On 22-10-1971 when these persons failed to appear, the Magistrate had to see as to whether the bond was for the appearance before the Court and as to whether to the satisfaction of such Court the bond was forfeited as its condition was not satisfied. He should have made an order to that effect in the first instance. Only thereafter he could have issued a notice to these persons calling upon them either to pay the penalty or to show cause why the same should not be paid. Instead the Magistrate proceeded to forfeit the bond as well as he ordered for realization of penalty which, however, he reduced to the advantage of these persons. That was not only an irregularity in procedure but the order itself became a nullity.

2. In this case, in fact Dhanvir and others appeared before the Court on 23-10-1971 because being illiterates they somehow mistook the date to be 23-10-1971 instead of 22-10-1971. However, the Court was found closed on that date and similarly the Court was close on the date following which was Sunday. Thereafter these persons appeared before the Magistrate on 25-10-1971 and their counsel Shri S. S. Doshta also appeared on their behalf. Therefore whatever default was committed by Dhanvir and others was explained and was justified before the Magistrate. They have not absconded and are available before the Court. It might as well be that there was some confusion as to dates. The learned Magistrate himself was obsessed with this situation, and that is why he reduced the amount of bond from Rs. 1000/- to only Rs. 100/-. In my opinion this was a case in which the bond itself should not have been forfeited and Dhanvir and others should have been absolved from their liability even to the reduced extent of Rs. 100/- as was ordered by the Magistrate.

3. I would, therefore, hold that the order regarding forfeiture of the bond and the realisation of penalty must be set aside being illegal. It is of no use to send the case back to the Magistrate for fresh proceedings under Section 514 of the Code of Criminal Procedure. In my opinion a good cause was made out for non-payment of penalty and the order of the Magistrate forfeiting Rs. 100/- in the case of each bond is also set aside. The revision is allowed and the order of the Magistrate as well as of the District Magistrate in appeal are set aside.


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