P L D 1957 Dacca 494 (PLP)

ISMAIL, J.‑

The two petitioners who stood sureties undertaking to produce an accused, were called upon by Mr. Momin, Magistrate, 1st Class, Dacca, in a proceeding under section 514, Criminal Procedure Code, to pay up the entire bail amount of Rs. 12,500 each, as their respec tive penalty, as mentioned in the bail bond furnished by them, and accepted by the Magistrate. Against the said order they went up in appeal which was heard and disposed of by the Additional District Magistrate, Dacca, who by his order, dated the 19th September, 1955, dismissed the appeal, and reduced the amount to Rs. 7,500 with respect to each of the petitioners. It is against these orders that the present Rule is directed. Learned Advocate Mr. Nurul Huda appeared on behalf of the petitioners, and learned Advocate Mr. S. M. Ali represented the State. Facts briefly stated are, that on the 2nd December, 1954 charge‑sheet was received against accused Syed Mazhar, Husa Askari and others under section 408/120‑B, and some other sections of the Pakistan Penal Code, besides under sec tion 7 (3) of E. B. P. S. 0/51. On the 6th January, 1955, bail bond for accused Askari was submitted and accepted. There after on the 17th January, 1955, on a petition filed by the C. S. I for time on the ground that on order for the trial of the case by a Special Judge was expected soon, the case was adjourned to the 31st January, 1955. There were several adjournments after that on some grounds or the other. On the 3rd June, 1955, the accused Askari did ‑not attend Court. The order‑sheet of that date reads as follows: "Seen remand petition filed by Inspector A. C. B. W. Kasim for a short adjournment to get the Government order for trial of this case by Special Judge. To 16th June, 1955. All accused are present except accused M. H. Askari who is absent without any petition. Sureties of accused M. H. Askari to produce him on the next date, and to show cause why their bail bond should not be forfeited on his absence today without any intima tion whatsoever. Other accused as before. Bail of accused M. H. Askari is cancelled. Issue W/A against him." Thereafter on the same date, i.e., on the 3rd June, 1955, a petition was filed on behalf of the sureties (the two petitioners) saying that they did not find the accused Askari at his house, that they learnt from his wife that he was absent for four or five days, and that he had lodged a complaint with the Police in that connection: In these circumstances they prayed that they might be allowed to surrender the bail of the accused Askari. The learned Magistrate noted his remarks on the petition itself. He also noted that the petition was filed at 10‑35 a.m., whereas the order in case was passed at 9‑40 a.m. The attention of the sureties was drawn to the order (in the order‑sheet) and they signed the order passed on the petition itself. Thereafter on the 16th June 1955, as required, the sureties showed cause, and their lawyer was heard. The learned Magistrate being not satisfied with the cause shown, passed his orders calling upon them to pay the penalty, as already stated. The first ground urged by Mr. Huda is that the finding of the learned Magistrate that the bail bond was forfeited without having previously served the petitioners with a notice asking them to show cause, was bad in law. In support of the above contention Mr. Huda cited a single Judge decision of the Allahabad High Court in the case of Prohit Anandi Prasad and others v. Rex (A I R 1949 All. 322). With due respect to his Lordship's findings, a perusal of the judgment shows that he held both ways. At one place, after quoting relevant portions of section 514 it was held as follows: "It would appear that this section contemplates that there must first be proof to the satisfaction of the Court that a certain bond has been forfeited. When this proof is adduced, the Court is directed to record, the grounds of such proof, and then to call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid. The subsequent paragraph of the section relate to what is to happen, if cause is not shown and the penalty is not paid, and that with the procedure for realizing the amount of the bond or the penalty imposed. The section does not lay down that any notice is to be issued in the first instance, when proof is adduced before the Court that a bond has been forfeited." With respect, I agree with the aforesaid observations, as there is nothing in the section to indicate that issue and service of notice to the surety are conditions precedent to the recording of a finding by the Court regarding the for feiture of a bond. There is nothing, however, to prevent the Court having regard to the facts and circumstances of a particular case before him, to issue such a notice, in exercise of his discretion. But, to my mind, to hold that in the absence of an issue and service of such a notice, the final order passed becomes illegal, would be to read some thing in the provisions embodied in section 514, which is not there. Reading the section, to my mind, there is no scope to interpret it otherwise. At another place his Lordship observed as follows: "The Court is required merely to record the grounds of the proof, and not its final decision that the bond has in fact been forfeited. That conviction of the Court will have to be recorded after the party has shown cause in pursuance of its notice." With respect, I am unable to agree with the aforesaid observations of his Lordship for reasons, which I have already given. Question of notice to show cause arises only after the Court's finding regarding the forfeiture, which, if I may say so, is at the second stage, i.e., after recording, `the grounds' of proof on which it is satisfied as to the forfeiture of bond, or in other words after its findings to that effect. Even after the Court's finding, it is only an alternative pro cedure provided under the aforesaid section that the Court may call upon the sureties to show cause as to why the penalty should not be paid. Another alternative, at this stage, is to call upon the sureties to pay the penalty straightaway without calling upon him to show cause. This is the only stage, as provided in the section when the Court has a discre tion to call upon the surety to show cause. Further, in the present case it is clear from the order sheet of the 3rd June, 1955, that the petitioners were asked to produce the accused on the next date (16th June, 1955), and to show cause why their bail bond should not be forfeited. No doubt the said order in the order‑sheet was passed in the absence of the petitioners, but as already stated they did appear on that very day after the aforesaid order was passed, and filed a petition and on the petition itself the learned Magistrate noted as follows: " The order has already been passed in the case today asking the sureties to show cause why their bail bonds should not be forfeited . . . . . . . Let the sureties take notice of the said order or comply on the date fixed." The order of the learned Magistrate passed on the 16th June, 1955, makes mention of the fact that the aforesaid observations on the petition were shown to the petitioners then and there. This finds further confirmation from the fact that the observations, on the said petition as already stated, bear the signatures of both the petitioners. The contention, accordingly, has no substance either in law or on facts. The position, however, resolves itself to this, that the Court did not record a finding regarding forfeiture of the bond in the absence of the accused on the 3rd June, 1955, which it could have done treating the absence itself as such a proof, that it was not satisfied that the bond was forfeited on the mere absence of the accused, and that in its opinion, therefore, the occasion to `record the grounds of such proof,' as required under section 514, did not arise so far. He, however, in exercise of his discretion, for his satisfaction, asked them to show cause on the next date as to why their bail bond should not be forfeited, directing them at the same time to produce the accused. The matter did not go further. Clause was, however, shown by the petitioners on 16th June, 1955. Mr. Huda contended that in the petition showing cause on the 16th June, 1955, there was materials calling for a thorough consideration of the Court, and which could no B with propriety, be disposed of without enquiry. This con tention is covered partly by ground No. 2 of the revision appli cation before this Court, and wholly by ground No.

4. Ground No. 4 reads as follows: "For the learned Magistrate in spite of the request of the lawyers of the surety for holding an enquiry into the cause shown, and having forfeited the bond without taking evidence in the presence of the petitioners before determining whether sufficient cause had been shown, and whether penalty should be recovered or not did not act according to the provisions of Law." Mr. Huda urged that the order passed, in such circum stances was not only improper but illegal at the same time, and that it has caused serious prejudice to the petitioners. It appears from the aforesaid petition showing cause (filed on the 16th June, 1955), that the petitioners submitted that they learnt from Farida Bano a wife of the accused (Askari) that one Bhambora Pahalwan of Malitola Lane, Dacca, came to her residence, and took her husband (the said accused), who had seven or eight hundred rupees in his possession, and that she apprehended that he (the said accused) might have been killed by him. It was further stated in the petition that it was reliably learnt that the said lady had lodged Ejahar with Sutrapur Police in the morning of 3rd June, 1955, regarding the said matters, and that on the basis thereof the Police searched for the said Pahalwan, who was said to have disappeared, and that it was apprehended that he might have committed the murder of the accused for the money or some other reason. A prayer was made in the petition for taking evidence regarding the facts contained in the petition with a further prayer that if the facts were found true the petitioners might be discharged from their liability. The learned Magistrate by his order, dated the 16th June, 1955, as it appears, has disposed of the matter on supposed contradictions between the contents of the afore said two Petitions. Further he seems to have been impressed by the fact that the sureties never informed him regarding the facts contained in their petition, dated the 16th June, 1955, before the order asking them to show cause was passed on the 3rd June, 1955. As regards the subject‑matter on which an enquiry was sought by the petitioners, the only point referred to in the order of the learned Magistrate is that the body of the accused was not admittedly traceable. In the circumstances there can be no doubt that an enquiry sought for by the petitioners in response to the notice issued by the learned Magistrate asking them to show cause, was never made, and Police Records, if any were never called for. To my mind the recording of the `grounds' of `proof' as required by section 514, in the particular circumstances of the case, could only be made after the said enquiry. As this Rule can be disposed of on this single point, it does not appear necessary to deal with the other points raised by Mr. Huda. The Rule is accordingly made absolute. The order of the learned Magistrate calling upon the petitioners to make payments of the bail amount as penalties, is set aside, and he is directed to make enquiry into the matters as con tained in the petitioners' petition, dated the 16th June, 1955, showing cause, and thereafter to proceed in accordance with law. Z. A. S. Rule made absolute.