P L D 1965 (W (PLP)

"The accused absconded on the day when the judgment was to be pronounced. I, therefore, forfeit the bonds of the two sureties and direct that they should pay Rs. 1,000 each. I have taken a lenient view because they have subsequently produced the accused." (Sd.) A. G. MOHAMMADALLY, Sessions Judge Dadu, dated 16‑2‑1963."

4. It is as against this last order that the present revision application is directed. Mr. S. Mazharali, the learned Advocate appearing on behalf of the two applicants has raised two‑main contentions. He has contended, in the first place, that the learned Sessions Judge was unduly precipitate in jumping to the conclusion that the accused Dattu had absconded from his Court on 2‑2‑1963 without taking any evidence in that behalf, or holding any inquiry or trying to find out why the accused had stayed away from his Court on that day. The learned defence Advocate has argued, secondly, that the learned Sessions Judge has failed to comply with the express provisions of section 514, Cr. P. C. by directing the issue of notice to the sureties without first forfeiting their surety bonds.

5. Now, section 514(1) Criminal P. C., is in these words "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 Magistrate of the First Class, 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 any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid." It is plain from a perusal of the language of this section that it is incumbent on a Court to first declare the bond forfeit and to record the grounds for such a finding before calling upon the A surety to pay the penalty thereof or to show cause why it should not be paid. 1n this case, the two orders of the learned Session Judge, dated 2‑2‑1963 and 16‑2‑1963 show that notice to the surety was issued on 2‑2‑1963 and that their bonds were declared forfeit on 16‑2‑1963. The learned Sessions Judge has clearly erred in this matter in directing the issue of notice to the sureties without first forfeiting their bonds. In this connection my attention was invited to the case of Zulmi Khan v. Emperor (A I R 1929 Pat. 643). In that case, the learned Magistrate without properly investigating the matter assumed that the accused had deliberately absented himself from his Court and issued notice to the surety/petitioner to show cause why the bail bond should not be forfeited and the penalty realized from him. It was pointed out by the Patna High Court in its judgment in this matter that‑ "In the light of the law as laid down in the cases to which I am referred, the proper course for the Magistrate should have been to come to a finding based on some evidence that the bail‑bond executed by the petitioner has been duly forfeited and then to issue a notice to show cause why the penalty should not be realized from him." In the instant case, the learned Sessions Judge, Dadu, made no enquiry whatsoever as to the reason for the accused Dattu absenting himself from his Court on 2‑2‑1963. The mere absence of the accused from his Court on that day, despite the fact that the accused had regularly attended each and every prior date of hearing, led the Sessions Judge to conclude that the accused had absconded and without. declaring the bonds forfeit' he promptly issued notices to the sureties. In my view, this conduct of the Sessions Judge is not in strict compliance with the law as it stands, and therefore, such conduct cannot be approved or upheld by the High Court:

6. Mr. Mazharali has also invited my attention to a fairly recent decision of our Supreme Court in the case of Dildar and another v. The State (P L D 1963 S C 47). Here, too, Dildar and his colleague Ghulam Hussain who had stood surety for one Mir Jan an accused in the Court of the S. D. M. Old Town, Karachi, who had absconded were directed to pay the sum of Rs. 5,000 each being the amount of their respective surety bonds. Appeals carried by them against this order before the Additional District Magistrate, Sessions Court and a further revision before the High Court were all dismissed. Special leave to appeal was granted to them by a Division Bench of the Supreme Court and at the regular hearing of the matter their Lordships of the Supreme Court found a defect in the proceedings taken against Dildar and Ghulam Hussain in the Courts below, namely:‑ "No effort appears to have been made by the Courts below to enquire into the relevant matters affecting the degree of their responsibility." Their Lordships explained in their judgment:

"In dealing with cases of sureties who are in default, a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severeity, which might lead to an unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. In assessing to what extent the bond should be forfeited the Court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused and whether they have done their best to secure his attendance. These matters have not been enquired into by the Courts below. We have accordingly thought fit to question the two sureties ourselves on these points." Now, in the instant case, it is apparent that the learned Sessions Judge, Dadu, has considered the degree of liability of the two applicants and because they have succeeded in producing the accused before him, he has taken a lenient view and has reduced the amount to be recovered from each of them from Rs. 3,000, the full amount of the surety bond, to Rs. 1,000 only. But, neverthe less, this learned Judge has erred in jumping to the conclusion that the accused Dattu has absconded from his Court on 2‑2‑1963 without making any 'enquiry or at all looking into the matter in spite of the application made before him that day by the mother of the accused Dattu. He has also erred in putting the cart before the horse and in directing the issue of notices to the two applicants/sureties on 2‑2‑1963 and in forfeiting their bonds subsequently on 16‑2‑1963.

7. Hence, in view of these errors committed by the learned Sessions Judge, I allow this revision application, set aside his order of 16‑2‑1963 and direct that the sum of Rs. 2,000 if paid by these two sureties be refunded to them. FEROZE NANA GHULAMALLY, J.‑

Announced by me in open Court in the absence of Mr. Justice Raymond. K.B.A. Petition accepted.