P L D 1962 Dacca 232 (PLP)

15. Mr. Sayem has also relied on a Single Bench decision of this Court, namely, Nil Kumar Chatterjee and another v. The Crown ((1953) 5 D L R 488).

16. In that case the bond which was furnished by the sureties in the Court of the District Magistrate recited that the sureties undertook to produce the accused "before your honour". "Before your honour" was taken to mean before the District Magistrate and not before any other Court. The bond of the sureties, it was held, could not therefore be forfeited on the ground that they had not produced the accused before the Assistant Sessions Judge as they never undertook to produce them before him.

17. Coming to the bond itself we find that in the first part the accused Upendra Nath Das undertook as follows: ‑ "I shall answer by appearing in your Court on every date fixed."

18. On the second para. on the same leaf, the sureties under took as follows :‑ "We will make the accused present before your honour on every date."

19. The accused says `in your Court', while the sureties say `before your honour'. The accused undertook to be present In Court while the sureties undertook to make him present before his honour. It seems that "before his honour" as stated by the sureties could not but mean that they meant to undertake appearance of the accused before the Court. There was nothing personal about ft. I find further that the bond is headed "In tire Court of the Special Judge, Dinajpur". The bond being addressed to the Court of the Special Judge, Dinajpur the distinction of Senior Special Judge and Special Judge as sought to be made does not come in.

20. Mr. Sayem has argued that once the case was transfer red from one Special Judge to another and the sureties having failed to produce before the Second Judge, their bond could not be forfeited by the Senior Special Judge. The wordings of sub sections (1) and (2) of section 514 of the Code of Criminal Procedure are as follows: ‑ (1) "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 (sac) or Magistrate of the First Class, car 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 paid. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead."

21. The section seems to give option to the first Court and also to the second Court in which appearance was required to be made. In term of the first part, the Court taking the bond can forfeit for violation of bonds of any kind whereas if the bond is only for appearance before a Court, it is the satisfaction of that Court that is necessary. In the present case, the Second Judge Mr. A. S. Khan could himself have forfeited by reason of the failure of the sureties but forwarded the consideration of the matter to the Senior Special Judge who had taken the bond on the following terms". "As the bail bond in this case was granted by the Senior Special Judge, let this petition be put up before hint for order. The case do however proceed against the other accused Mahiruddin".

22. The Senior Special Judge passed the forfeiture order for non‑appearance before the Special Judge and not for non- appearance before the Second Special Judge as stated by Mr. Sayem. The bond having been addressed to the Special Judge.' Dinajpur, any Special Judge, Dinajpur could forfeit the same on satisfaction. Of the decisions relied on an examination of the facts, of the first one, namely, the Calcutta case shows that in that case the bond was addressed to the Court of the Deputy Magistrate mentioning the name also of the Deputy Magistrate. Here it is not so.

23. In the second case, the distance was too far, namely, from the Court of the District Magistrate to that of the Assistant Sessions Judge, and thereafter an appeal was preferred before the Sessions Judge. The Sessions Judge allowed the appeal, set aside the order of conviction arid sentence and sent back the case for re‑trial and allowed bail to the ac; used persons. The petitioners thereupon stood surety on behalf of the accused undertaking to produce the accused before the District Magistrate's Court when called upon to do so, but they failed to produce him before the Assistant Sessions Judge.

24. So far as the actual forfeiture order goes, Mr. Sayem has placed ground No. 2 of the petition which is as follows: ‑‑ "For that no notice having been served on the petitioners, on the prescribed form for showing cause and no proper opportunity having been given to the petitioners in that behalf, the order forfeiting the bond has been illegal and in violation of natural justice".

25. It appears that on 10th May 1960, three of the sureties were present In Court and in their presence they were given time till 30th May 1960, to show cause by 30th May 1960. The sureties did not show cause. The bail‑bond was, therefore, forfeited. Besides, the wordings of section do not call for, as pointed out by Mr. Maquith Chowdhury for the State showing cause before forfeiture order when the reasons are apparent on the record. What is needed is the satisfaction of the Court.

26. Mr. Sayem has next urged ground No. 3 of the petition which is as follows :‑ "For that by the order dated 10‑5‑60 the learned Senior Special Judge having given the sureties time till 30‑5‑60 to show cause, the order dated 30‑5‑60 forfeiting the bonds has become illegal and void." Mr. Sayem's grievance is that while on 10th May i 960, time for twenty days was given till 30th May 1960, to show cause against forfeiture the learned Judge wrongly passed the order on 30th May 1960 which should have been passed on the expiry of the thirtieth day, that is, on the thirty‑first of May.

27. It appears that the sureties did not come forward with any petition till 30th June 1960, that is, nearly one month after . In that view the point does not seem to be of much substance.

28. Next ground urged by Mr. Sayem is ground No. 4 of the petition which is: "For that the petitioners ought to have been liven an opportunity of ascertaining and proving the death of the accused Upendra Nath Das."

29. It appears that the main accused has been absconding ever since 25th December 1959. As pointed out by Mr. Chowdhury ever since 10th June 1960, the petitioners have been trying to find our the truth. Mere allegation of the death of accused is not enough. They did not make any prayer for bringing evidence of death of accused Upendra. Mr. Sayem has, in his petition referred to a letter in the Docket of the Collector relating to the death but there was no reference to it before the Special Judge At any rate it was not sought to be proved as evidence of death.

30. Mr. Sayem has next urged ground No. 5 of the petition which is: "For that at any rate the penalty imposed on the sureties requiring deposit of the entire amounts of the bail‑bonds is unduly harsh."

31. The fact remains that the accused was a clerk in the Government Acquired Estate of Dinajpur and it could not be expected by the sureties that he would escape in the fashion he has done.

32. We have also to bear in mind the caution given by Cornelius, J. as he then was, in the decision in Sardar Khan v. Crown (P L D 1952 Lah. 645), in which it was held as follows: ‑ "Court should regulate the imposition of penalty in cases of default from the point of view, not so much of assessing the 'guilt' of the sureties in terms of money, but with the object of maintaining the system in its intergrity. In other words, if leniency towards sureties became the general rule, the whole system of release of accused persons on bail might require to be re‑examined to ensure the proper progress of criminal cases. And the same time, it is obviously not necessary or desirable in the average case, that the Court should lean in the direction of severity, for this might lead to difficulties in production of sureties, having the effect of overcrowding the judicial lock‑ups and other attendant inconveniences. In this case the full amount of the bond (Rs. 5,000) was forfeited which was reduced to Rs. 1,000 on appeal, and, again to Rs. 250 on revision to the High Court." We have to chose between being too hard and too liberal. In that view the ends of justice may well be met if the penalty is reduced to Rs. 300 in the case of each petitioner. The Rule is discharged with this modification of penalty as stated above. The order for stay of further proceedings is vacated. S. B. Rule discharged.