P L D 1952 Lahore 660 (PLP)

CORNELIUS, J.‑This is a petition by two persons, Muhammad Din and Mustaqim, and calls in question an order made by the District Tribunal appointed under the Punjab Control of Goondas Act, 1951, whereby a surety bond furni shed by the two petitioners in the sum of Rs. 20,000, for the appearance before the said Tribunal of one Haji, which had been forfeited, was enforced against the sureties to the extent of Rs. 10,000 by way of penalty: Haji was the person com plained of before the Tribunal, and it seems that it was sought to have him declared a dangerous goonda, under section 13 of the Act. Haji is a brother of the petitioner. Mustaqim. The bail bond was furnished on the 11th July, 1951. Haji failed to appear on one of the dates fixed viz, the 25th September, 1951, and it seems that he was arrested by the Kanganpur Police on the 30th September, five days later. On the 25th September, only the District Magistrate, who is one of the two members of the District Tribunal, was present, and he made an order forfeiting the bond sitting alone. The order is as follows :‑ "'The person complained against is absent. The surety bond is forfeited. Non‑bailable warrant for the arrest of the person complained of to issue for the 6th October, 1951. Notice to the sureties also to show cause." On the same day, a fresh file relating to the forfeiture was commenced by a proceeding bearing the signature of the District Magistrate in which the facts were set out viz. that the sureties had furnished the bond on the 11th July, 1951, that they had undertaken that the person complained of would be present at every hearing, and in default, they would pay Rs. 20,000 jointly and severally, that the person complained of was absent on that day and no reasonable cause had been made to‑appear for his absence, therefore, the surety bond of the sureties was forfeited arid the sureties were required by notice to show cause why the amount of Rs. 20,000 should not be recovered from them jointly and severally. In relation to a weighty argument put forward by learned counsel for the petitioners, it is important to state here that this was the only order forfeiting the bond which was made during the proceedings. The notice sent to the sureties was not served immediately. On several intermediate dates the Tribunal made an order for issue of a fresh notice and on these occasions, the second member, namely, the Senior superin tendent of Police, was also present. This was relied upon on behalf of the Crown as curing the defect alleged to exist in the order of forfeiture, in relation to certain provisions of the Act and of the Code of Criminal Procedure which will be mention ed presently, but I am satisfied, after full consideration of the facts of the case, and of the special nature of the drastic pro visions contained in the Act, that these subsequent orders of a merely formal nature being consequential upon the making of the order of forfeiture, do not touch that order itself, so as to affect its legality one way or the other. Eventually the two sureties appeared on the 9th January 1952. They filed written statements in which the reason given for Haji's failure to appear on the 25th September 1951, was that he had been arrested by the Kanganpur police. In evi dence, it appeared that the arrest was effected by Sub -Inspector Muhammad Azeem of that Thana on the 30th September, 1951, and the excuse was, therefore, not valid. Two witnesses produced by the sureties in their defence merely stated the same fact viz. that the person complained of had been arrested by the Kanganpur police. The Tribunal held that the sureties had failed to show cause against the imposition of penalty, which they fixed at Rs. 10,

000. I quote the following words from the order :‑ "We are of the opinion that it will quite meet the ends of justice if both Muhammad Din and Mustaqim jointly and severally pay Rs. 10,000 as penalty in regard to the forfeited bond." The argument advanced to invalidate this order is that the initial order of forfeiture, being made by a single member of the Tribunal was ultra vices. Reference was made to section 3 of the Punjab Control of Goondas Act which runs as follows :‑ "Except as provided elsewhere in this Act, all proceedings before the Tribunal shall be conducted before both the members thereof; provided that the District Magistrate may, whether in the presence or absence of the other member, make orders of an administrative or procedural character relating to the production of documents, the summoning of persons complained of and witnesses, granting adjournments, payment of expenses to the witnesses and like; or an order under section 21 of this Act." Section 21 provides power to the Tribunal to direct that every person who has been declared a goonda or a dangerous goonda under section 14 should, if required by the Tribunal, present himself for the purpose of being photographed and for provid ing either samples of finger impressions or specimens of his hand writing. It is urged that an order forfeiting a bond is not, in any way, similar to an order under section 21 of the Goondas Act nor does it bear any resemblance to the orders of an administrative or procedural character of which ex amples are contained in the third section. Reference was made to the wording of section 514, Criminal P. C. (which are rendered applicable to bonds furnished under the Goondas Act by subsection (5) of section 16), laying down that "whenever it is proved to the satisfaction of the Court by which a bond has been taken, or . . . . . . . . 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 a person bound by such bond to pay the penalty, or to show cause why it should not be paid." The requirements that there should be proof and that this proof should be adequate to prove forfeiture of the bond, to the satisfaction of the Court, are sufficient by themselves to show that the act contemplated to be performed by a Court proceeding under section 514 (1) Criminal P. C. is a judicial act, in the true sense of the word. It can, in no cir cumstances be regarded as a purely administrative or pro cedural act, and consequently, it is not such an act as can be performed on behalf of the District Tribunal by the District Magistrate sitting alone, under the provisions of section 3 of the Act. The argument is a forceful one, and has not been met suc cessfully on either of the two grounds advanced for the Crown. The first, which has already been dealt with, is that by the subsequent orders of the Tribunal directing that fresh notice should issue, the defect if any, constituted by the making of the order of forfeiture on the 25th September 1951, by the District Magistrate, was cured. As I have pointed out the order forfeiting the bond, which was correctly regarded by the Tribunal as a distinct order from that imposing the penalty, was only made once, viz. on the 15th September, and on that occasion it was made by the District Magistrate. The second ground urged was that it was possible to conceive of the order forfeiting the bond as an administrative order, or failing that, a procedural order. I do not propose to set out the reasons advanced in support of this view, for it is, in my view, plain beyond doubt that the contention for the petitioners on this point is correct, and that an order forfeiting a bond is a judicial order and can, in no circumstances, be regarded as an ad ministrative or procedural order. It is argued with somewhat greater force, on behalf of the Crown, that, even admitting this defect the powers of this Court under section 18 of the Goondas Act are not attracted. This section which gives the High Court power of revision over orders made by a Tribunal is expressed in much narrow terms than the provisions relating to. revision in ordinary criminal proceedings, as contained in the Criminal Procedure Code. By expression, orders made under section 16 of the Goondas Act which relates to bonds, including bonds of the present kind, are brought within the scope of the High Court's powers of revision, which powers are, however, only attracted if the Tribunal appears‑ (a) to have exercised jurisdiction not vested in it by law ; (b) to have failed to exercise jurisdiction so vested ; or (c) to have acted in the exercise of its jurisdiction ille gally." In any of these cases the High Court is empowered to make "such direction as it may deem sufficient for the recti fication of the error or omission." For the petitioners it was urged that these powers, with special reference to clause (c), were amply sufficient to cover the present case. The argument on the other side was that the defect, if any, was hardly to be regarded as an illegality, but, particularly, in view of the patent fact that on the 25th September, 1951, the person com plained of was absent, and thus there was visible default by the sureties in the discharge of their obligations, it should be regarded as a mere irregularity and to be deemed to have been cured by the subsequent proceedings, in which the sureties participated after notice. In considering the question whether the defect constitutes an illegality, or a merely curable irregularity, it is proper to have regard to the nature of the statute and the effect of the action which has been called in question, in relation to the petitioners. The Goondas Act is clearly a statute of a penal nature which empowers the Courts to take severe action against certain classes of persons, and upon being duly satisfied regarding certain matters, to place them under restrictions, and also to render them liable to penalties, which are beyond any which are incorporated in the ordinary penal laws. Such a statute must necessarily be construed strictly and at least in relation to acts to be perfumed thereunder which are in their nature judicial acts, it is necessary to apply the general rule of interpretation that the procedure of the Tribunal imposing any disability or penalty should be regarded as imperative, and not merely as directory. In other words, it is necessary that if any section of a judicial kind taken which is in effect adverse to the liberty or even to the interests of any person involved in the proceedings, that act must be performed in precise accordance with the procedure laid down in the statute and if there has been any departure from such procedure, such departure is fatal to the validity of the act, which thereby becomes void. This would also affect the validity of all consequential proceedings. In my view this principle must be applied also in cases affecting sureties falling under the Goondas Act. An order fore feiting a surety bond is clearly a judicial order under Act, and must be made strictly in accordance with the procedure laid down. In my view, the provisions of the Goondas Act on the point of the forfeiture of surety bonds, when rightly construed in relation to the other provisions of the Act, require that an order of forfeiture should be made by both members of the Tribunal. Therefore, the order in the present case which is made by only one member of the Tribunal is ultra vines and I cannot see that this defect is cured by any subsequent pro ceedings in the case, but, on the other hand, it seems to me that all such subsequent proceedings are vitiated by reason of the initial excess of jurisdiction. It is, therefore, necessary that the order should be set aside, and proper proceedings should be required to be taken after the making of a proper order of forfeiture. It may not be out of place if I add a few general observa tions regarding the correct attitude to be adopted towards sureties in cases of this kind: On the 25th September 1951 neither the person complained of nor his sureties were present. The District Magistrate immediately made an order, purporting to be made on behalf of the Tribunal, forfeiting the bond furnished by the sureties. Speaking with respect, such an order could only have been made on the assumption that the bond was forfeited by mere non‑appearance of the person complained of, for the sureties themselves were not bound to appear on every hearing with the person complained of. Now, the sureties are not by virtue of their bond, con stituted as custodians of the person complained of. It is their duty to use such means as lie within their power to ensure that such person makes appearance on due dates From the mere absence of the sureties on the 25th September 1951, It was, in my opinion, and speaking with respect to the view taken by the learned District Magistrate, not a necessary inference that they had failed to take proper precautions or action to ensure that the person complained of should appear on that day. For instance, it may well be that they had met the person complained of in the interval since the last date and had assured themselves by questioning him, and perhaps informing themselves of his intended movements, that he would appear on the due date. In the present case, the sureties have filed an affidavit before me to the effect that the person complained of actually appeared before the Tribunal on the 26th September 1951 and pleaded that he was under a misapprehension concerning the date on which he was to appear. This plea was not taken by the sureties before the Tribunal, but as has already been seen, they contended them selves before the Tribunal with pleading that that absence was due to the person complained of having been arrested by the police of another thana. I express no view regarding the truth or otherwise of the allegation contained in the affidavit above mentioned, but the plea there put forward is certainly one of those which might have been advanced by the sureties before the Tribunal, by way of excuse for the non‑appearance of the person complained of, despite their having assured themselves that he would in fact appear. These possibilities point to the great importance of allowing the sureties to explain the causes of their default, before an order of forfeiture is made. A variety of circumstances may be put forward in which the absence of an accused person may be due to no fault of the sureties and may occur despite every effort which can reasonably be expected from them to ensure appearance. It is also necessary to observe, that while it is proper that the obligations of sureties should be enforced with firmness, any tendency towards undue severity in enforcing bonds may have undesirable effects of several kinds. It must be remem bered that a surety, besides not being constituted a custodian of the accused person, ordinarily undertakes the obligation without remuneration, and that the function which he performs is of great importance to the administration of criminal justice. The system of granting bail to persons under trial has numerous advantages, both in relation to the dispensation of justices as well as on the purely administrative side. While ensuring the presence of the accused for the purpose of pro ceedings, it avoids the imposition of restraints on his liberty in advance of his conviction which would in themselves consti tute an unjustified punishment in the average case. Also, it avoids the administrative problems and expense which would arise if the majority of accused persons were placed in judicial lockups during the period of their trials. Therefore while undue leniency towards sureties might, on the one hand, lead to abuse of the procedure under which bail is allowed to under trial accused persons, too great severity towards sureties might have the effect of restricting the grant of bail, and thus minimizing the advantages of the system and, to some extent, perhaps even denying to accused persons the rights allowed to them by law, on account of difficulty in procuring sureties. Even where forfeiture is fully justified, it is still necessary for the authority directing the forfeiture to determine the amount of the penalty to be levied. It is ordinarily not possible to assess in terms of money the gravity of a default by a surety in assuring the appearance of an accused person. In fixing the penalty, therefore, the considerations to be borne in mind should include, besides particular considerations arising out of the case before the Court, appreciation of the larger issues affecting the whole system which have been briefly indicated above. For the reasons given above I set aside the order of the District Magistrate forfeiting the surety bond dated the 25th September, 1951, as well as all proceedings consequential there upon, including the order imposing the penalty of Rs. 10,000 upon the sureties. I direct that after proper proceedings, the Tribunal should proceed to make a proper order under subsection (2) of section 514, Criminal P. C. as applicable to the Goondas Act, on the question whether or not the bond should be forfeited, and to proceed thereafter as required by law. A. H. Order set aside.