P L D 1960 Dacca 184 (PLP)

3. In this case, after the bail bonds had been furnished, the accused persons applied under section 528 of the Code of Criminal Procedure to the Additional District Magistrate of Dacca for the transfer of the case from the Court at Manikganj. This application was filed on the 31st of May 1958, and it was admitted on the 2nd of June 1958, when the Additional District Magistrate also called for the records and stayed further proceedings. There after, on the 21st of June 1958, the Additional District Magistrate allowed the prayer and passed the following order :‑

"As the case is an important one and as there is reasonable apprehension in the mind of the accused person that he will not receive justice at Manikganj, other Magistrates being within the control of the S. D. O. Therefore, this case will be transferred to my file after the investigations in this case are completed, and the case will be transferred to the file of Mr. F.R. Faruqui, Magistrate, 1st Class, Dacca. Seen the application for return of passports, etc. This will be considered by the trying Magistrate after the investigations are completed". After this, the records earlier called for were returned to the Manikganj Sub‑division, presumably for the completion of the investigation. Thereafter, the Sub‑Divisional Magistrate oil receipt of the file, directed the case to be put up on the 30th of August 1958. On this date, the accused Manindra Chandra Neogi and Mrinal Kand Neogi, being away at Cox's Bazar, could not be produced in Court. Accordingly, on the 8th of September 1958, an order was passed by a Magistrate of the 1st Class, sitting in the Court of the Sub‑Divisional Officer on that day, for drawing up proceedings under section 514 of the Code of Criminal Procedure asking the sureties to show cause why the bail bonds should not be forfeited and, as already stated, ultimately orders were passed forfeiting the bail bonds and asking the sureties to pay the entire amount of the bonds. On appeal, however, the District Magistrate maintained the forfeiture but modified the amount and directed that the amount to be paid by the sureties of each bond be limited to Rs. 5,000.

4. It is against this order that the petitioners have now come up in revision to this Court, and it is urged on their behalf that the order for the forfeiture of the bond is entirely illegal. Accord ing to the petitioners, after the Additional District Magistrate had directed the transfer of the case from the Court of the Sub -Divisional Officer at Manikganj to the Court of Mr. F. R. Faruqui, a Magistrate of the 1st Class at Dacca, the Sub‑Divisional Magis trate at Manikganj had no right whatsoever to insist upon the production of the accused in his Court, particularly, since the order passed on the 2nd of June 1958, staying further proceedings in his Court had not been vacated by the Additional District Magistrate. It is further said that in the present case cognizance of the offence having been taken under clause (c) of subsection (1) of section 190 of the Code of Criminal Procedure upon informa tion received from a person other than a police‑officer, no question of any further investigation into the case arose and, as such, the order of transfer became operative from the day it was made.

5. Apart from this, as already stated, it is contended that even conceding that there was any investigation left to be done, investigation could not become a part of a preliminary inquiry under Chapter XVIII of the Code of Criminal Procedure and, hence, since by the bond executed by the sureties they under took only to produce the accused for the preliminary inquiry in the Court holding the preliminary inquiry and, thereafter, if necessary, in the Court of Session, they had committed no breach of the bond by not producing the accused for any investigation.

6. The bond, it is maintained, must be strictly construed and my attention has been drawn to the wording of the bond. It is clear therefrom that the only undertaking that the sureties gave was to produce the accused for the preliminary inquiry in the Court holding the preliminary inquiry and thereafter in the Court of Session, if necessary. They gave no other undertaking to the Court.

7. In support of this contention, strong reliance has also been placed on a decision of a Division Bench of this Court in the case of Ibrahimuddin Mollah and Mafizuddin Paramanik (9DLR379), where Ellis anti Amin Ahmad, JJ., as they then were, held that in proceedings taken to forfeit a bond it is necessary that the person affected should be called upon to comply strictly with the terms of the bond.

8. It seems to me, therefore, that this contention must prevail. It is manifest that in the present case the Sub‑Divisional Magistrate of Manikganj acted in excess of his jurisdiction in forfeiting the bond and in imposing the penalty. I find consider able support for this view also from a decision of the Bombay High Court in the case of Pandurang Pundlik Shanbhag v. Emperor (A I R 1931 Bom. 411). In this case, the accused who was on bail made an application under subsection (8) of section 526 of the Code of Criminal Procedure for the adjournment of the case. The Magis trate refused the adjournment, took up the case and, since the accused were not present, immediately forfeited the bond and drew up proceedings for imposing the penalty. The Bombay High Court held that under the terms of subsection (8) of section 526 of the said Code the Magistrate had no power to refuse the appli cation and he was bound to grant the adjournment and, in those circumstances, the accused were entitled to stay away from Court and the Court acted illegally in forfeiting the bond.

9. Similarly, in the present case, the Court was bound to carry out the orders of the Additional District Magistrate staying further proceedings. The Court could not take any further step for the holding of the preliminary inquiry in the case. The investi gation is not done by the Sub‑Divisional Magistrate. Therefore, there could be no reason whatsoever for the Sub‑Divisional Magistrate to call for the production of the accused on the 31st of, August 1958. He acted, in my opinion, grossly illegally in so doing and the petitioners cannot be said to have committed any breach of their bond by not producing the accused for such inves tigation, even conceding that the investigation could be held by the Sub‑Divisional Magistrate.

10. In the circumstances, it is clear that this Rule must be' made absolute and the order directing the forfeiture of the bond and the payment of the penalty must be set aside.

11. This Rule is accordingly made absolute. K. B. A. Rule made absolute.