P (PLP)

R. C. Talakdar, for Petitioner. No one, for Crown. Ellis, J.‑

In this case a Rule was issued on the District Magistrate of Bogra to show cause why an order passed by him on the 12th of April, 1949 in the matter of a bond executed by the petitioner as surety should not be set aside. The material facts are that on the 16th November 1948, one Azizar Rahman, was arrested in respect of an occurrence which took place on the evening of the 9th November, 1948,. The case was a serious one in that certain smugglers armed with guns and ramados and the like are said to have attacked a petrol officer as he was out on duty, to have killed him with a ramdao and to have stolen the government gun which was then with his party. The accused, Azizar Rahman was arrested, as we have stated, on the 16th November 1948. Other accused were subsequently arrested on the 14th December, 1948, and were released on bail of Rs. 200 each on the 1st February, 1949. A charge sheet was submitted by the Police in respect of an offence under sections 148, 379, 380 and 302 of the Indian Penal Code. On the 12th February, 1949, the learned Magistrate before whom the pro ceedings were pending released this accused, Azizar Rahman on what is described as town bail. We are unable to appreciate the reasons which caused him to do so. Up to the time the charge sheet was submitted the Magistrate firmly refused to allow all petitions asking for bail. It is, therefore, beyond comprehension why when the Police reported there was a case against this accused under a serious charge under section 302, the Magistrate should on the next date have released him on " town bail " Thereafter on the 25th February, 1949, Azizar Rahman applied for the conditions of his bail to be relaxed, and still more surprisingly the learned Magistrate withdrew whatever restrictions he had imposed under his order of the 12th February, 1949. Thereafter the District Magistrate withdrew the case to his on file. On the 9th March, 1949, and on that date passed the following order. Withdrawn to my file, See Court Inspector's report Bail order in respect of Azizar and Tofiz are cancelled. Issue non‑bailable warrants against them at once." On the 19th March, 1949, the co‑accused, Tofiz, was brought under arrest and committed to hajat, and a takid was sent for the execution of the warrant against Azizar Rahman. On the 22nd March, 1949, the learned Magistrate suddenly be thought himself of the bond executed by Azizar Rahman and called upon the surety to produce him on the 26th March, 1949, or else his bail bond would be forfeited. The Surety was unable to produce the accused and accordingly the bail bond was forfeited and the petitioner was called upon to pay Rs. 500 under the order now under consideration. Mr. Taluqdar has appeared in support of the Rule. N o one has appeared to oppose it Mr. Talukdars first point is that the accused was never called upon by the Magistrate to furnish fresh bail on the 25th February, 1949, and so the bond which was forfeited, not having been executed in response to any order of the Court, could not be legally forfeited. It is true that in pursuance of the first order of the 12th February, 19+9, one Rats‑ud‑Din, Muktear stood surety for the accused; Azizar Rahman ; and it is true that on the 25th February, when the learned Magistrate relaxed the conditions of the bail bond of the 12th February, 1949, he did not call for a fresh bail bond. However, we do find from the record that there was a bail bend executed on the 25th February, 1949, which was signed by the petitioner as surety and which was accepted by the Magistrate. As this bond was signed by the petitioner and accepted by the Magistrate, we are unable to find any substance in Mr. Talukdar's first point. But Mr. Talukdar is on firmer ground when he draws our attention to the order of the District Magistrate passed on the 9th March 1949, as virtually terminating the bond and giving rise to conditions which made it practically impossible for the surety to produce the accused. The learned Magistrate would have been well advised if, after he withdrew the case to his file, he had first of all called on the surety to produce the accused before him and then taken action if the surety did not do so. It is undisputed that he did issue a non‑bailable warrant against the accused, and Mr. Talukdar contends that by so doing he put an end to the bond and also made it impossible for the surety to produce the accused before him. His subsequent order of the 22nd March, 1949, calling upon the surety to produce the accused, after his own non‑bailable warrants had failed to procure the attendance of the accused, did not help matters. In the result the Rule is made absolute. The order of the learned Magistrate calling upon the petitioner to pay Rs. 500 in. default to undergo simple imprisonment for three months under section 514 of the Code of Criminal Procedure is set aside. The amount if paid already will refunded. Ahmad, J.‑‑I agree. M. A. Rule made absolute.