P L D 1971 Baghdad﷓ul﷓Jadid 65 (PLP)

Q.‑The Probation Department has reported against you that you had escaped from their probation and had violated the conditions of probation. Today you have been presented here after being arrested by the police, do you want to say anything why you should not be sentenced again for the offences under which you were sent on probation? A.‑The police wants to arrest me and is making some other cases against rite. I do not want to remain outside. I may be sent to jail. Q.‑Do you want to say anything else? A.‑No Sir. By order dated 11th May 1971, the learned Magistrate held that the accused‑petitioner had violated the terms of the Probation Ordinance and, therefore, he may be sent to jail for undergoing the sentences. No evidence was recorded in the Court nor any opportunity of cross‑examination was given to the accused petitioner. This Revision petition is directed against this order of the learned Magistrate. The provision by which the Court is empowered to make a probation order in certain cases is given in section 5 of the Probation of Offenders Ordinance, 1960. Section 7 gives the penalty for failure to observe conditions of the bond and is re produced below :‑ S. 7.‑(1) If the Court by which an offender is bound by a bond under section 5 has reason to believe that the offender has failed to observe any of the conditions of his bond, ft may issue a warrant for his arrest or may, if it thinks fit, issue summons to the offender and his sureties, if any, requiring them to appear before it at such time as, may be specified in the summons. (2) The Court before which an offender is brought or appears under subsection (1) may either remand him to judicial custody until the case is heard or admit him to bail, with or without sureties, to appear on the date of hearing. (3) If the Court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of his bond,: including any conditions which ‑may have been imposed under subsection (2) of section 5, it may forthwith‑ (a) sentence him for the original offence, or (b) without prejudice to the continuance in force of the bond, impose upon. him a fine not exceeding one thousand rupees Provided that the Court imposing the fine shall take into account the amount of compensation, damages or costs ordered to be paid under .section 6. (4) If a fine imposed under clause (b) of subsection (3) is not paid within such period as the Court may fix, the Court may sentence the offender for the original offence. Subsection (i) of this section provides that if the Court has reason to believe that the offender has failed to observe any of the conditions of his bond it may issue a warrant or summons, to secure the presence of the accused etc. subsection (2) provides that when the offender is brought or appears under subsection (1) the Magistrate may either admit him to bail or remand him to judicial custody. The power of passing final order of sentencing him for the original offence is given in subsection (3), but this can be done by the Court after hearing the case and after the Court is satisfied that the offender has failed to observe any of the conditions of his bond. The question is whether the learned Magistrate, could have passed the impugned order without recording any evidence on the question whether in fact, the conditions of the probation have been violated. No doubt, if on appearance of the accused, the Magistrate puts the allegations to him and he admits those allegations explicitly and in detail which admission should be susceptible of no other interpretation, but that the accused admits of the facts in Court, the Magistrate can pass an order under section 7(3) straightaway. But if there is no such admission, the words "hearing the case" and satisfaction denote that these are judicial proceedings before a judicial officer to which obviously the Evidence Act would be applicable and hearing of the case will connote the recording of the evidence giving an opportunity of cross‑examination of the witnesses to the accused. Judicial satisfaction also can be obtained only by the legal evidence. In section 514 of the Cr. P. C. which relates to the procedure of forfeiture of bond, the condition precedent is the satisfaction of the Court and a person bound by the bond to pay the penalty has a right to show cause why it should not be paid. In these circumstances it has been held that except in cases where the violation is of a bond for appearance before a Court, the violation has to be proved by evidence. In the Empress v. Nobin Chander Dutt (I L R 4 Cal. 865), it was held that when the respondent appears and shows cause, he must be given an opportunity of cross‑examining the witnesses upon whose evidence the Magistrate had directed him to show cause why the bond should not be forfeited. In Queen‑Empress v. Har Chandra Chowdhury (I L R 25 Cal. 440) it was held that before a final order is made the witnesses on whose evidence the forfeiture is held to be established if they have been previously examined in the absence of the accused, must again be examined in his presence. The necessity of recording evidence was also stressed In re: Mohesh Chandra Roy ((1882) 10 C L R 571). In Kumarappan and another v. The King (A I R 1939 Rang. 427) which was a case of forfeiture of bond for reasons of non‑appearance, it was held that in a case of bond under section 106, Cr. P. C. the respondent should be given an opportunity of cross‑examining the witnesses upon whose evidence the Magistrate had directed him to show cause why the bond should not be forfeited. In Wali Muhammad v. State (P L D 1957 Dacca 494) it was contended that in the petition showing cause there was some material calling for a thorough consideration of the Court which could not, with propriety, be disposed of without inquiry. This objection prevailed and it was held that regarding of grounds of proof as required by section 514 in the particular circumstances of the case could only be made after inquiry while the Magistrate had disposed of the matter on the supposed contradiction between the contents of two applications. Some assistance may also be derived from Mau j Ali and another v. Emperor (A I R 1930 Lah. 591) where it was held that where the case of the sureties was that they never allowed to exercise any control over the movements of the accused person, there being a police guard at the hospital the sureties should be given an opportunity to prove their allegations. In certain cases a distinction was drawn between a case where forfeiture is effected for non‑appearance and a case of forfeiture of bond for the purpose of section

106. One such case is Kumarappan and another v. The King and same view was taken in an Indian case Gurupada Mudaliar v. Government of Mysore (A I R 1952 Mys. 102), it was held that "there is a difference between a bond taken for appearance of accused and a bond for the purpose of section 106 etc. As regards the latter, some evidence is required to show that conditions under which or events on the happening of which the bond can be forfeited exist. In the case of a bond for appearance, the Court by its own observation is able to see whether the person concerned is present or absent. No indepen dent proof is necessary for this and it is a meaningless formality to take evidence of all these facts." It is no doubt true that there was the report of the Probation Officer before the learned Magistrate but the report as such is no evidence of the facts stated therein. The learned Magistrate was acting in his magisterial and judicial capacity as a Court and he was bound by the Evidence Act. The facts stated in the report, therefore, required to be proved before him by at leas some evidence. If merely the Probation Officer had appeared before him and his statement on oath had been recorded that would have been sufficient compliance with the provisions of section 7, but in the absence of any evidence it cannot be said that the Magistrate either hear the case or could be satisfied about the allegations. A satisfaction obtained by evidence which is not legal evidence will be deemed to be an arbitrary satisfac tion and not a satisfaction in the eye of law. It is not clear even from the order of the learned Magistrate whether he has treated the statement of the petitioner in reply to his question reproduced above as an admission of the facts stated in the question. If he considered the reply of the petitioner as an admission, be has clearly misread the answer. The questions put to the petitioner are of the same character as questions under section 242 of the Criminal Procedure Code with which summons trial starts. Section 243, Cr. P. C. provides that the Magistrate can convict if the accused admits that he has committed the offence of which he is accused. If the petitioner had been tried for an offence under the summons procedure and such a question had been put to him could he be convicted on the answer that he may be sent to jail because the police is after him. In cases falling under Chapter VIII of the Cr. P. C. there are large number of decided cases which have decided the proposition that mere statement by a person that he is ready to furnish security or give bond does not justify an order being passed under section 107, 109 or 110, Cr. P. C. Reference may be made to Ujagar Singh v. Emperor (A I R 1929 Lah. 504), Emperor v. Sheduan (24 P R 1915 (Cr.)), Prem Singh v. Emperor (27 P C 1917 (Cr.)), Mul Chand v. Emperor (I L R 37 All. 30), Chander Shekhar v. Emperor (54 I C 411), Jagdat Tewari and others v. Emperor (54 I C 784), Ram Charan v. Emperor (1926 All. 614), Abdul Majid v. Crown (P L D 1953 Bal. 24), Sadhu Singh v. Emperor (P L D 1935 Posh. 116). The statement of the accused, therefore, could not be deemed to be an admission. The petitioner simply showed his disgust against the police, but he did not reply either in the affirmative or in the negative to the questions put by the learned Magistrate. As the legal procedure has not been adopted for passing the order of the sentence under section 7 of the Probation of Offenders Ordinance, 1960, I accept this Revision Petition, set aside the order dated 11th May 1971 and remand the case to the learned Magistrate for taking legal proceedings under section 7 of the Probation of Offenders Ordinance, 1960. The petitioner may be informed about this order. S. Q. Petition accepted